U.S. Deputy Attorney General David Ogden has issued new guidelines that federal prosecutors must follow in complying with their discovery obligations in criminal cases. These new guidelines stem from an effort spurred by criticism of the Department of Justice (“DOJ”) after it was forced to dismiss the case against former Alaska Senator Ted Stevens in April 2009. Stevens was originally convicted at trial, but the DOJ was forced to dismiss his case on appeal because the prosecutors in that case failed to turn over potentially exculpatory evidence.

In the aftermath of the Stevens case, and several other high-profile allegations of prosecutorial misconduct, Attorney General Eric Holder put together a working group of senior prosecutors, law enforcement representatives, and information technology professionals to evaluate the DOJ’s discovery practices and identify areas for improvement. In response to the findings from this working group, the DOJ issued three memoranda authored by Deputy Attorney General Ogden on January 4, 2010 to provide guidance for all United States Attorney’s Offices and all DOJ attorneys, entitled: (1) “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Case Management Working Group” (known as the Summary Memorandum); (2) “Requirement for Office Discovery Policies in Criminal Matters;” and (3) “Guidance for Prosecutors Regarding Criminal Discovery.”

The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. Section 3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). In addition, the United States Attorney’s Manual describes DOJ’s policy for disclosure of exculpatory and impeachment information. The memos, however, are intended to establish “a methodical approach” to discovery obligations and to try to address “[i]nconsistent discovery practices among prosecutors within the same office.”

The Summary Memorandum states that each United States Attorney’s Office (“USAO”) will now have a discovery coordinator who will provide discovery training to each office, as well as serve as a discovery advisor. The Summary Memorandum also lists several initiatives being undertaken by the Department of Justice, including creating an online directory of resources pertaining to discovery, which would be available to each federal prosecutor, implementing a regular discovery training curriculum and mandatory training for paralegals and law enforcement agents, and developing a handbook on discovery and case management.

The second memorandum, “Requirement for Office Discovery Policies in Criminal Matters,” mandates that all United States Attorneys and other DOJ department heads establish a specific discovery policy for the prosecutors in their respective offices by March 31, 2010. According to the memorandum, the policy should specifically address issues such as “the timing of disclosures; disclosure of reports of interview for testifying and non-testifying witnesses; providing disclosures beyond the requirements of Fed. R. Crim. P. 16 and 26.2, Brady, Giglio, the Jencks Act, and USAM §§ 9-5.0001 and 5.1000…” among other discovery related issues.

The third memorandum, “Guidance for Prosecutors Regarding Criminal Discovery,” identifies specific steps related to gathering and reviewing evidence, and making disclosures to defense counsel. Prosecutors are reminded of their obligations “to seek all exculpatory and impeachment information from all members of the prosecution team,” and are encouraged “to provide discovery broader and more comprehensive than the discovery obligations” require. The “Guidance” memorandum includes several sections of particular importance to white-collar matters, including the factors to be considered in determining whether to review potentially discoverable information created by another federal agency in a parallel proceeding (e.g. SEC, EPA, etc.), and a directive that it is the prosecutor’s responsibility to ensure that, when possible, witness interviews are memorialized by the interviewing agent.

While these memos are “not intended to have the force of law or to create or confer any rights, privileged or benefits” it will be difficult for DOJ attorneys to convince judges in the future that they have met all of their discovery obligations if they have not followed the guidance provided in the memos. Critics of these memos suggest that they do not go far enough to correct DOJ’s perceived problems because prosecutors, as opposed to neutral third parties, will still be the ones to determine what is material and what should be provided to defense counsel. Others have pointed out that the memos provide no guidance about when Jencks material should be turned over to the defense, which will allow different policies to prevail in different offices.

As Attorney General Eric Holder stated when he released these memos, “[t]he Department of Justice’s responsibility is not just to win cases, but to do justice.” If the changes contained in these memos are put into practice by federal prosecutors around the country, the Department of Justice should be in a better position to make sure discovery issues do not interfere with the administration of justice in the future.