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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IN RE:
DISCOVERY IN CRIMINAL CASES MISC. NO. 00-308
STANDING ORDER 2020-01
This Order establishes the procedures that apply to the parties' Discovery and Inspection
Obligations under Fed. R. Crim. P. 16 and 16.1.
1. Discovery Conference (Rule 16.1). The adoption of Fed. R. Crim. P. 16.1 (effective
December 1, 2019) underscores the importance of requiring counsel for the Government
and the Defendant(s) in criminal cases to confer early in the case with the goal of
reaching agreement regarding a timetable and procedures for pretrial disclosure and
discovery under Rule 16. Rule 16.1 recognizes the value of allowing the parties the
flexibility to tailor these procedures to the needs of a particular case. When the parties
are able to do so by mutual agreement, there is no need to involve the Court in the
process. When they are unable to do so, however, Rule 16.1 provides a means for the
Court to determine or modify the time, place, manner, or other aspects of disclosure and
discovery to facilitate preparation for trial. This Standing Order implements Rules 16
and 16.1.
Within 14 days of the initial appearance, or by a date agreed on by the parties,
counsel forthe Government and the Defendant(s) shall confer and try to agree on a
timetable and procedures for pretrial discovery and disclosure under Rule 16 and to agree
on the discovery that may be given to the Defendant(s). If they are successful in reaching
agreement, they may proceed in accordance with that agreement. If they do not reach
agreement, then the procedures set forth in paragraphs two, three, and four of this
Standing Order will govern the discovery and disclosure process.
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2. Government's Disclosure:
a. Within 14 days of the Rule 16.1 conference, the Defendant shall serve a written
request for discovery on the Government ("Defendant's Request"), setting forth the
information made subject to disclosure by the Government by Rule 16(a)(1). It shall
be organized in accordance with the subsections identified by Rule 16(a)(1)(A)-(G) in
•such a manner that the Government can readily identify what information is requested
by discrete category. Defendant's Request need not be filed with the Court.
b. Within 21 days of the service of the Defendant's Request, the Government will
produce the information requested to counsel for the Defendant, organized in the
categories identified by Rule 16(a)(1)(A)-(G). Counsel for the Defendant may not
provide the Defendant with copies of the information produced until the parties
have complied with the procedures set forth in paragraph 2.b(i)-(iv) of this
Order. If the Government objects to the production of any of the information
requested by the Defendant that is within its possession, custody, and control, it shall
describe in writing and with particularity the information that it is not producing as a
result of the objection, and state with particularity the basis for the objection. The
notice of objection need not be filed with the Court. The Defendant then may
respond to this notice of objection in the manner identified in Paragraph 4 of this
Order regarding resolution of discovery disputes.
i. After reviewing the information provided by counsel for the Government (and at
reasonable times thereafter if the Government supplements its production), if
counsel for the Defendant wishes to provide any of the information to the
Defendant for the Defendant's personal possession, counsel shall provide the
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Government with written notice of the information produced by the Government
that Defendant's counsel proposes to provide to the Defendant ("Defendant's
Copies"). This notice will be particularized so that the Government may readily
identify the specific information that counsel for the Defendant intends to include
in the Defendant's Copies. The notice need not be filed with the Court.
ii. Within 7 days of receipt of the disclosure of the discovery that counsel for the
Defendant intends to include in the Defendant's Copies, the Government will
respond in writing by identifying any discovery that the Government objects to
having included in the Defendant's Copies. The objection must state with
particularity the basis for the Government's objection. The objection need not be
filed with the Court. The deadline for serving the objection may be modified by
agreement of counsel or by Court order.
iii. Within 7 days of the Government's notice of objection, counsel will meet and
confer in good faith in an effort to resolve any disagreement about the content of
the Defendant's Copies. If counsel are unable to resolve the objeclions, counsel
for the Government shall file with the Court a letter (not to exceed 3 single-spaced
pages) within 7 days of the meeting, stating with particularity the discovery that
the Governments objects to having included in the Defendant's Copies, as well as
the basis of its objection, and whether it requests the issuance of a Protective
Order in accordance with Rule 16(d)(1). If the Government intends to seek a
Protective Order, the letter shall state the facts establishing good cause for the
issuance of a Protective Order, as Rule 16(d)(1)(A) requires. Within 7 days,
counsel for the Defendant may file a written response (not to exceed 3 single-
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spaced pages). Unless requested by the Court, no reply by the Government will
be permitted.
iv. Until the Court has ruled on any dispute raised in accordance with
Paragraph 2.b(iii), the proposed Defendant's Copies may be shown to, but
not provided to, the Defendant, and will be maintained by Defense counsel.
c. Discovery produced by the Government to counsel for the Defendant, as well as to
the Defendant as part of the Defendant's Copies (whether by agreement of the
Government or by order of the Court), may be used only in connection with the
defense of this case and may not be provided to any other person except by agreement
of the Government or order of the Court, but may be produced by counsel for the
Defendant to appropriate persons such as expert witnesses or other individuals
directly involved in the Defendant's defense.
3. Defendant's Disclosure:
a. Within 14 days of the Rule 16.1 conference, the Government shall serve a written
request for discovery on the Defendant ("Government's Request"), setting forth the
information made subject to disclosure by the Defendant by Rule 16(b)(1). It shall be
organized in accordance with the subsections identified by Rule 16(b)(1)(A)-(C) in
such a manner that the Defendant can readily identify what information is requested
by discrete category. The Government's Request need not be filed with the Court.
b. Within 30 days of the production by the Government required by Paragraph 2.b
above, unless otherwise agreed by the parties or ordered by the Court, the Defendant
will produce the information requested to counsel for the Government, organized in
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the categories identified by Rule 16(b)(1)(A)-(C). If the Defendant objects to the
production of any of the information requested by the Government that is within the
Defendant's possession, custody, or control and that the Defendant intends to use in
the Defendant's case-in-chief at trial, the Defendant shall describe in writing and with
particularity the information that it is not producing as a result of the objection, and
state with particularity the basis for the objection. The objection need not be filed
with the Court. The Government then may respond to this notice of objection in the
manner identified in Paragraph 4 of this Order regarding resolution of discovery
disputes.
4. Resolution of Discovery Disputes:
a. Counsel for the Government and the Defendant are expected to confer in good faith
throughout the pretrial phase of the case with the goal of resolving any disputes
regarding discovery and disclosure without the need to involve the Court.
b. Except as provided by Paragraph 2.b of this Order (which sets out specific procedures
to follow in the event of a dispute regarding the discovery that may be included in the
Defendant's Copies), if good faith efforts to resolve a discovery or disclosure dispute
are unsuccessful, the party that intends to seek an order of the Court to resolve the
dispute shall file a letter (not to exceed 3 single-spaced pages) with the Court setting
forth the nature of the dispute, the efforts made in good faith to resolve it, and the
relief requested from the Court. Within 7 days, the adverse party may file a letter (not
to exceed 3 single-spaced pages) setting forth its position with respect to the dispute.
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c. The existence of a dispute regarding the production of discovery or disclosure
information shall not be grounds for refusing to produce other requested information
that is not subject to the dispute.
d. The parties are required to follow the procedures of this Paragraph promptly in the
event of a discovery or disclosure dispute. Failure to do so may result in a
determination by the Court that the party has waived the objection by failure to
pursue it promptly.
5. Expert Witness Disclosures:
a. Expert witness disclosures provided in accordance with Rule 16(a)(1)(G)
(Government's expert disclosure) and Rule 16(b)(1)(C) (Defendant's expert
disclosure) must include all of the information specified by those rules and must be
stated with particularity. Boilerplate or conclusory disclosures are prohibited.
b. If a party objects to the sufficiency of an adverse party's expert witness disclosthe,
that party shall promptly comply with the discovery dispute resolution procedures set
forth in Paragraph 4 of this Order.
6. Continuing Duty to Disclose: As required by Rule 16(c), a party who discovers
additional evidence or material before or during trial must promptly disclose its existence
to the other party or the Court if: (i) the evidence or material is subject to discovery or
inspection under Rule 16, and (ii) the other party preyiously requested, or the Court
ordered, its production.
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7. Statements Made by Prospective Government Witnesses (Jencks, 18 U.S.C. § 3500):
a. For many years it has been the customary practice in this District for the Government
routinely to disclose to the Defendant statements made by prospective witnesses as
provided in 18 U.S.C. § 3500 ("Jencks") at least one week before trial to enable
counsel for the Defendant to be prepared to cross-examine Government witnesses
without the need to ask the Court for a continuance in the trial, unless legitimate
concerns about safety and security militated against early disclosure. This practice
was wise, fair, and contributed significantly to the effective and prompt trial of
criminal cases. It also demonstrated proper respect for the members of the jury by not
unnecessarily prolonging the length of jury trials with continuances to enable counsel
for the Defendant to prepare for cross examination of Government witnesses.
b. The Court expects that this practice will continue. If the Government does not intend
to follow this practice in a particular case, or if it intends to withhold Jencks material
for any reason, it shall provide written notice to the Court and counsel for the
Defendant not later than the date when the Government is required to make its
disclosures as required by Paragraph 2.b of this Standing Order, unless otherwise
agreed to by the parties or ordered by the Court.
8. Disclosures required by Brady and Giglio: Although the primary focus of this Order is
on discovery and disclosure as provided by Rule 16, in the event that a dispute arises
regarding the timing and completeness of Government disclosures required by Brady and
Giglio, the parties will comply with the procedures set forth in Paragraph 4 of this Order,.
to attempt to resolve the dispute without Court intervention and, if unsuccessful, to
promptly bring the dispute to the attention of the Court for resolution.
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9. The provisions of this Standing Order may be modified by agreement of the parties or by
order of the Court.
Z0Z 2•r• C— -
Date James K. Bredar, Chief Judge
United States District Court
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