(a) Discovery Alternatives.
(1) Automatic Discovery. In all felony cases and Class A misdemeanor cases (except
those within the Central Violations Bureau), unless a defendant waives automatic
discovery in accordance with subsection (b) below, all discoverable material and
information in the possession, custody, or control of the government and the
defendant, the existence of which is known, or by the exercise of due diligence may
become known, to the attorneys for those parties, must be disclosed to the opposing
party without formal motion practice at the times and under the automatic
procedures specified in these local rules.
(2) Non-Automatic Discovery. In petty offense cases and Class A misdemeanor cases
within the Central Violations Bureau, and in cases where the defendant waives
automatic discovery in accordance with subsection (b) below, the defendant must
obtain discovery directly through the provisions of the Federal Rules of Criminal
Procedure in the manner provided under L.R. 116.3.
(b) Waiver. A defendant shall be deemed to have requested all the discovery authorized by
Fed. R. Crim. P. 16(a)(1) unless that defendant files a Waiver of Request for Disclosure
(the “Waiver”) at arraignment or within such additional time as the court may allow upon
motion made by the defendant at arraignment. If the Waiver is not timely filed, the
defendant shall be subject to the correlative reciprocal discovery obligations of Fed. R.
Crim. P. 16(b) and this rule and shall be deemed to have consented to the exclusion of time
for Speedy Trial Act purposes as provided in L.R. 112.2(a). If the court allows the
defendant additional time in which to file the Waiver, and no Waiver is timely filed, the
28-day period for providing automatic discovery established in subsection (c) of this rule
shall begin to run on the last date allowed for filing the Waiver, and all dates for filing
discovery letters and motions established in L.R. 116.3 shall be adjusted accordingly.
(c) Automatic Discovery Provided by the Government.
(1) Following Arraignment. Unless a defendant has filed the Waiver in accordance
with subsection (b) above, within 28 days of arraignment (except a Rule 11
arraignment on an information), absent a contrary schedule established by the court
pursuant to subsections (e) and (f) below, the government must produce to the
defendant:
(A) Fed. R. Crim. P. 16 Materials. All of the information to which the
defendant
is entitled under Fed. R. Crim. P. 16(a)(1).
(B) Search Materials. A copy of any search warrant (with supporting
application, affidavit, and return) and a written description of any consent
search or warrantless search (including an inventory of items seized):
(i) that resulted in the seizure of evidence or led to the discovery of
evidence that the government intends to use in its case-in-
chief; or
(ii) that was obtained for or conducted of the defendant’s property,
residence, place of business, or person, in connection with
investigation of the charges contained in the indictment.
(C) Electronic Surveillance.
(i) a written description of any interception of wire, oral, or electronic
communications as defined in 18 U.S.C. § 2510, relating to the
charges in the indictment in which the defendant was intercepted
and a statement whether the government intends to use any such
communications as evidence in its case-in-chief; and
(ii) a copy of any application for authorization to intercept such
communications relating to the charges contained in the indictment
in which the defendant was named as an interceptee or pursuant to
which the defendant was intercepted, together with all supporting
affidavits, the court orders authorizing such interceptions, and the
court orders directing the sealing of intercepted communications
under 18 U.S.C. § 2518.
(D) Consensual Interceptions.
(i) a written description of any interception of wire, oral, or electronic
communications, relating to the charges contained in the indictment,
made with the consent of one of the parties to the communication
(“consensual interceptions”), in which the defendant was
intercepted or which the government intends to use in its case-in
chief.
(ii) nothing in this subsection is intended to determine the
circumstances, if any, under which, or the time at which, the attorney
for the government must review and produce communications of a
defendant in custody consensually recorded by the institution in
which that defendant is held.
(E) Unindicted Coconspirators. As to each conspiracy charged in the
indictment, the name of any person asserted to be a known unindicted
coconspirator. If subsequent litigation requires that the name of any such
unindicted coconspirator be referenced in any filing directly with the
court, that information must be redacted from any public filing and be
filed under L.R. 7.2 pending further order of the court.
(F) Identifications.
(i) A written statement whether the defendant was a subject of an
investigative identification procedure used with a witness the
government anticipates calling in its case-in-chief involving a
lineup, show-up, photospread or other display of an image of the
defendant.
(ii) If the defendant was a subject of such a procedure, a copy of any,
recording, photospread, image or other tangible evidence reflecting,
used in or memorializing the identification procedure.
(2) Exculpatory Information. The timing and substance of the disclosure of
exculpatory evidence is governed by L.R. 116.2.
(d) Automatic Discovery Provided by the Defendant. Unless a defendant has filed the
Waiver in accordance with subsection (b) within 28 days after arraignment (except a Rule
11 arraignment on an information), absent a contrary schedule established by the court
pursuant to subsections (e) and (f), the defendant must produce to the government all
material described in Fed. R. Crim. P. 16(b)(1)(A) and (B).
(e) Deadline for Automatic Discovery. At arraignment, the judicial officer shall set a date for
completion of automatic discovery in accordance with this rule. The date may be extended
on motion or request of any party.
(f) Alternative Discovery Schedule. The parties shall inform the court at arraignment, or as
soon as practicable thereafter, of any issues that might require an alternative discovery
schedule. Requests for an alternative discovery schedule in complex cases shall be liberally
granted. The court shall not allow an alternative discovery schedule without providing a
date for the completion of automatic discovery.
(g) Non-Automatic Discovery Provided by the Parties. If the defendant files the Waiver, all
requests for discovery and reciprocal discovery, and all responses to such requests, shall be
made in writing and filed with the court. Unless a greater or lesser amount of time is
established by the court upon motion and for good cause shown, within 28 days of receiving
a letter or motion requesting discovery, a party shall produce all discovery responsive to
those requests to which it does not object and shall file a written response to those requests
(if any) to which it does object, explaining the basis for its objections.
Adopted September 1, 1990; amended effective December 1, 1998; amended effective February
1, 2012.
