New DOJ policies promise both a more thorough identification of potentially exculpatory and guilt-negating information and a more enthusiastic production of such materials to defendants, but courts are slow to adopt the new approaches.
The respective federal civil and criminal rules regarding the formatting and organization of discovery materials for one’s adversary are so disparate that they appear to straddle different centuries of technological development. Civil Rules 26 and 34 are firmly of the 21st century, and have generated expectations among litigants and judges regarding the manner and format in which discovery will be produced electronically. Criminal Rule 16 harkens, by contrast, to the early Industrial Revolution, encouraging the government to produce rooms, or even warehouses, full of paper documents to be examined in challenging physical environments of heat, cold, or excessive moisture.
On January 4, 2010, Deputy Attorney General David W. Ogden issued a series of three memoranda, published on the website of the Department of Justice, which represented the culmination of a several-months long study of discovery practices among the United States Attorney’s Offices and retraining of new discovery coordinators from each Office. The study was… Continue Reading
Federal Rule of Criminal Procedure 16(b) imposes discovery requirements on the defense which are triggered when the government complies with its own, initial disclosure obligations. Some defense counsel treat the reciprocal obligation as more or less voluntary, betting that they will be spared the district court’s wrath and will avoid the sanction of evidence preclusion… Continue Reading
A lengthy ruling and opinion from an en banc Tenth Circuit upheld the insider trading conviction of Joseph Nacchio, the former CEO of Qwest Communications, and further held that the trial judge properly excluded a defense expert’s opinion testimony under FRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). United States… Continue Reading
On January 6, 2009, the Fifth Circuit rendered its opinion affirming the conviction of Jeffrey K. Skilling in the Enron financial fraud. United States v. Skilling, No. 06-20885. One of the issues raised by Skilling on the appeal was an alleged Brady violation. Skilling argued the government failed to disclose exculpatory information and its use… Continue Reading