CRIMINAL APPENDIX
STANDING ORDER ON DISCOVERY
(Amended September 10, 2020)
In all criminal cases, it is Ordered:
(A) Initial Disclosure by the Government.
No later than 14 days after the arraignment, the attorney for the government and the
defendant’s attorney must confer and try to agree on a timetable and procedures for pretrial
disclosure under Rule 16. After the discovery conference, one or both of the parties may ask the
court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate
preparation for trial.
If any agreement is reached, this agreement shall be reduced to writing and filed with the
Court by the government within 3 days of reaching the agreement.
(1) Information subject to disclosure.
Within 14 days after the arraignment or within the period established by the discovery
conference or otherwise established by the court, the attorney for the government shall furnish
to defense counsel copies, or allow defense counsel to inspect or listen to and record items
which are impractical to copy, of the following items within the government’s possession,
custody, or control, the existence of which is known or by the exercise of due diligence could be
known to the attorney for the government:
(a) the substance of any relevant oral statement, or the portion of any written record
containing it, made by the defendant, before or after arrest in response to interrogation by a
person the defendant knew was a government agent, if the government intends to use the
statement at trial;
(b) any relevant written or recorded statement by the defendant;
(c) the defendant’s recorded testimony before a grand jury relating to the charged
offense;
(d) for an organizational defendant, any statement by a person who is covered by
Rule 16(a)(1)(C);
(e) the defendant's prior criminal record;
(f) books, papers, documents, data, photographs, tangible objects, buildings or
places, or copies or portions of any of these items, which are material to preparing the
defense or which the government intends to use in its case-in-chief at trial, or were obtained
from or belong to the defendant;
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(g) results or reports of any physical or mental examinations and of any scientific
tests or experiments, if the item is material to preparing the defense or the government
intends to use the item in its case-in-chief;
(h) a written summary of any testimony that the government intends to use under
Rules 702, 703 or 705 of the Federal Rules of Evidence during its case-in-chief at trial. This
summary must describe the witness's opinions, the bases and reasons for those opinions
and the witness's qualifications;
(i) all warrants, applications, with supporting affidavits, testimony under oath,
returns, and inventories for the arrest of the defendant and for the search and/or seizure of
the defendant's person, property, things, or items with respect to which the defendant has
standing to move to suppress;
(j) all applications, orders, line sheets, and recordings obtained pursuant to Chapter
119 of Title 18 of the United States Code with respect to which the defendant has standing
to move to suppress;
(k) all information that may be favorable to the defendant on the issues of guilt or
punishment and that falls within the scope of Brady v. Maryland, 373 U.S. 83 (1963) and its
progeny;
(l) all information concerning the existence and substance of any payments,
promises of immunity, leniency, or preferential treatment, made to prospective government
witnesses, within the scope of United States v. Giglio, 405 U.S. 150 (1972), Napue v. Illinois,
360 U.S. 264 (1959) and their progeny;
(m) all information concerning the defendant's identification in any lineup, showup,
photospread or similar identification proceedings;
(n) all information related to other crimes, wrongs or acts of the defendant that will
be offered as evidence by the government at trial pursuant to Federal Rule of Evidence
404(b).
(2) Information Not Subject to Disclosure. Except as otherwise provided by law,
this Standing Order does not require the discovery or inspection of reports, memoranda, or
other internal government documents made by an attorney for the government or other
government agent in connection with investigating or prosecuting the case. Nor does this
Standing Order require the discovery or inspection of statements made by prospective
government witnesses, except as provided in 18 U.S.C. § 3500.
(3) Grand Jury Transcripts. This Standing Order does not apply to the discovery
or inspection of a grand jury’s recorded proceedings, except as to grand jury testimony by the
defendant.
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(B) Disclosure by the Defendant.
(1) Information Subject to Disclosure. Within 14 days after the attorney for the
government provides the discovery required by Paragraph A, defense counsel shall:
(a) inform the attorney for the government in writing whether the nature of the
defense is (i) alibi, (ii) insanity, mental disease or defect or any other mental condition of the
defendant bearing on either (A) the issue of guilt or (B) the issue of punishment in a capital
case, or (iii) acting under public authority at the time of the offense;
(b) furnish copies or allow the government to inspect or listen to and record items
that are impractical to copy, of the following items that are within the defendant’s
possession, custody or control:
(i) books, papers, documents, data, photographs, tangible objects, buildings
or places, or copies of portions of any of those items if the defendant intends to use the
item in his case-in-chief at trial;
(ii) results or reports of any physical or mental examinations and of any
scientific tests or experiments, if the defendant intends to use the item in the defendant’s
case-in-chief at trial, or intends to call the witness who prepared the report and the report
relates to the witness’s testimony; and
(iii) a written summary of any testimony that the defendant intends to use
under Rules 702, 703 or 705 of the Federal Rules of Evidence as evidence at trial, if (i)
the defendant requests disclosure under Rule 16(a)(1)(G) and the government complies,
or (ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert
testimony on the defendant’s mental condition. This summary must describe the
witness's opinions, the bases and reasons for those opinions, and the witness's
qualifications.
(2) Information Not Subject to Disclosure. Except for scientific or medical reports,
this Standing Order does not require discovery or inspection of:
(a) reports, memoranda, or other documents made by the defendant, or the
defendant’s attorney or agent, during the case’s investigation or defense; or
(b) a statement made to the defendant, or the defendant’s attorney or agent, by:
(i) the defendant;
(ii) a government or defense witness; or
(iii) a prospective government or defense witness.
(C) Continuing Duty to Disclose. It shall be the continuing duty of counsel for both sides
to reveal immediately to opposing counsel all newly-discovered material within the scope of this
Standing Order.
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(D) Discovery Motions. Any motions related to discovery shall contain a certification that
counsel have conferred and that, after good faith efforts to resolve their differences on
discovery, they were unable to reach an accord.
(E) Compliance. The Court may, upon a showing of good cause, order the discovery
provided under this Standing Order be denied, restricted or deferred, or make such other order
as appropriate.
(F) Use of Discovery Material. Unless otherwise authorized by the Court or the party
producing discovery, and except for materials that were obtained from or belong to the party
receiving discovery, a party shall not use any material that it receives as discovery from the
opposing party, except for the purposes of the criminal proceeding itself. For purposes of this
rule, the criminal proceeding includes proceedings in the district court, on appeal, or in a
collateral attack of any judgment arising from that criminal proceeding.
(G) Protected Discovery Material.
(1) Designation of Protected Discovery Material. The attorney for the
government may designate in writing that certain discovery material is “Protected Discovery
Material” by bates-stamp, letter, index or other clear manner. Protected Discovery Material
means only grand jury testimony and written or recorded statements of witnesses (other than by
the defendant as set forth in paragraph (A)(1)(a)-(d) above), material filed under seal in any
court, reports drafted by law enforcement officers or agencies, material provided to the United
States by foreign law enforcement officers or agencies and/or material regarding such provision,
and material that has been classified. At any time, the Court may, for good cause, issue an
order regarding the designation, use, or scope of Protected Discovery Material.
(2) Custody of Protected Discovery Material. Unless otherwise authorized by the
Court or the party producing discovery, and except for materials that were obtained from or
belong to the party receiving discovery, counsel shall not provide copies of any Protected
Discovery Material to any persons, except that defense counsel may provide copies to persons
employed by defense counsel in connection with the investigation or defense of the case, and
the government may provide copies to law enforcement agents or persons employed by
government counsel in connection with the investigation and prosecution of the case. In
addition, any person receiving material under this provision from defense counsel or the
government shall not provide copies of this Protected Discovery Material to any person.
(3) Public Disclosure of Protected Discovery Material. When a party believes it
is necessary to file any Protected Discovery Material, absent consent of the opposing party, that
party must comply with Local Criminal Rule 57(b) by moving to file the material under seal.
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