Concerning the Implementation of Federal Rule of Criminal Procedure 16.1

NACDL urges the criminal defense bar to develop best practices for pretrial discovery. To that end, the Board authorizes the NACDL President to impanel a Rule 16.1 Task Force of practitioners and other experts to gather facts, collect data, and assess discovery procedures that have been implemented throughout the nation.

Preliminary Statement

NACDL notes that a new provision of the Federal Rules of Criminal Procedure is on track to take effect on December 1, 2019. The new rule provides as follows:

Rule 16.1.  Pretrial Discovery Conference and Modification

(a) Discovery Conference.  No later than 14 days after the arraignment, the attorneys for the government and the defendant must confer and try to agree on a timetable and procedures for pretrial disclosure under Rule 16.

(b) Modification of Discovery. After the discovery conference, one or both parties may ask the court to determine or modify the time, place, manner, or other aspects of discovery to facilitate preparation for trial.

Although the rule appears simple on its face, it has the potential to promote fundamental changes in how discovery is handled in the digital age wherein the availability of a massive volume of information presents enormous challenges. The rule presents new opportunities to meet those challenges. It compels a prosecutor to confer with defense counsel about how discovery should be handled. Prosecutors can no longer make that decision unilaterally and the rule appears to impose a duty to make a good faith effort to agree on the discovery process. Second, because the rule entitles counsel to be heard on the time, place, manner, or other aspects of discovery production, it affords the parties an opportunity to bring to the attention of the court any unreasonable position asserted by the prosecution and empowers the court to modify the discovery timetable and process. Finally, it makes clear that the court’s role is “to facilitate preparation for trial.” Thus, the benchmark is no longer concern for case management, but rather the more subjective consideration of what is required to effectively prepare for trial.

The ESI Protocol refers to the “Recommendation for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases,” which was developed in 2012 by the Department of Justice, the Administrative Office of the U.S. Courts, and the Joint Working Group on Electronic Technology in the Criminal Justice System (“JETWG”).

Additionally, the Advisory Committee note admonishes counsel to be familiar with “best practices,” citing the ESI Protocol1 as an example.

Resolution

Accordingly, It Is Hereby Resolved: The NACDL Board of Directors urges the criminal defense bar to develop best practices for pre-trial discovery. To that end, the Board authorizes the NACDL President, pursuant to her powers of appointment, to impanel a Rule 16.1 Task Force of practitioners and other experts to gather facts, collect data, and assess discovery procedures that have been implemented throughout the nation. The Task Force shall survey practitioners, consult with prosecutors and judges to determine what works and what does not, and endeavor to produce a comprehensive set of best practices to effectuate the objectives of Rule 16.1.

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