By Alicia Penn

Recently a defense team asked for help with reviewing their discovery. It was a single PDF made up of over 18,000 documents and contained no bookmarks or index. The discovery letter accompanying the production looked like this:

This letter was completely useless to the defense team trying to review the discovery. It gave no information that could be used in searching or organizing. The only thing it conveyed is that 18,686 individual pages had been produced to defense counsel. Without an index or bookmarks, there was no simple way to quickly and completely identify reports, witness statements, etc.  

Rule 16.1 gives one proactive solution to this problem. Instead of passively waiting for the government to produce discovery in the way easiest or best for the government (a single PDF document of more than 18,000 pages with no index or bookmarks) and then having to react and ask for different or additional productions that makes sense for the defense (an index, bookmarks, separate PDFs), the rule provides for an early meet-and-confer. This conference with opposing counsel can be used to discuss incoming discovery and how it should be produced to minimize pain points on both sides.

The Rule

Here is the rule:

Rule 16.1 Pretrial Discovery Conference; Request for Court Action[1]

1. Discovery Conference. No later than 14 days after the arraignment, the attorney for the government and the defendant’s attorney must confer and try to agree on a timetable and procedures for pretrial disclosure under Rule 16.
2. Request for Court Action. After the discovery conference, one more more parties may ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.

The rule was added in April 2019 and became effective in December 2019. It was meant to address, even then, the obvious new problems of electronic discovery by requiring counsel to consider, plan, and meet about how and when discovery would be produced from the government to the defense.

It’s a short rule. The barebones requirements are that the attorneys must meet and confer within 14 days of arraignment to try to agree on a timeline and procedures for pretrial disclosure. After the meeting, either party can ask a court to rule on discovery production issues.

The notes give more context.[2] Among other things, the notes emphasize that this meeting is supposed to happen early on in the case and is meant to help with complicated productions—“The new requirement is particularly important in cases involving electronically stored information (ESI) or other voluminous or complex discovery.”The notes also direct counsel to consider best practices for the “manner or timing of disclosure in cases” with electronic discovery.

Practical Application

At its simplest, a Rule 16.1 conference can be as basic as a phone call.[3] There is no requirement for any written materials or filed motions, but as with any conversation with the government there is a benefit to preparing for the call and anticipating issues[4] that might require agreement or resolution.

Basic discovery information you will want to know as soon as possible includes the type of incoming discovery and anticipated size. What is the government using to review the discovery? Has the government collected multiple cellphones? This is a good time to ask that they be produced to you with cellebrite reader (as opposed to a PDF report), so that you can review the phones’ contents efficiently. Is the government using a review platform? Ask for the load files. Do you prefer to view your text searchable discovery as multipage, searchable, PDFs? Ask for it to be produced in that format, and ask for a searchable index so you just aren’t sent a 18,000 document PDF with no bookmarks. Do you just want to read all of the ROIs first? Ask for documents to be produced first with the rest of the discovery (surveillance videos, jail calls, other audio/video files) to follow later with a rolling production. This way you can get started on the text searchable documents first before dealing with surveillance videos. Documents are usually smaller files and eaiser to produce and reivew, whereas media files tend to be large and take more time to process and produce. Figure out a calendar of approximate production times—this way you can give your client and idea of when to expect witness statements, police reports, the extraction of cellphone data, etc. These are only a few examples of how a conference and agreement can help smooth the production of discovery from the government to you and facilitate review. One advantage to having this discussion is that you avoid having to ask the government to reproduce discovery they have already produced. Many of these small asks—sending a load file, sending an index, are not difficult for the government—the staff member tasked with production only has to check a box or send a document already in existence. However, as many of us have experienced, asking for a change to already-produced-discovery can be met with reluctance or refusal. Much better to anticipate and address issues on the front end. Everyone wins here—the defense wins because we can ask for discovery in a way that makes sense for our capacity and review process, the government wins because they will only have to produce discovery once (correctly), and the court wins because the parties can use the precious time they would have spent going back-and-forth about discovery production issues for actual discovery review and trial preparation. If conflict happens the rule offers court interference as a solution

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[1] https://www.law.cornell.edu/rules/frcrmp/rule_16.1

[2] https://www.law.cornell.edu/rules/frcrmp/rule_16.1

[3] The third paragraph of the notes shows what compliance with the rule looks like. At its simplest an informal and brief conversation is enough to satisfy the meet and confer requirement, but more complicated productions might need more effort. “The rule states a general procedure that the parties can adapt to the circumstances. Simple cases may require only a brief informal conversation to settle the timing and procedures for discovery. Agreement may take more effort as case complexity and technological challenges increase.” https://www.law.cornell.edu/rules/frcrmp/rule_16.1

[4] For a one-page checklist for topics to consider, see the ESI Discovery Production Checklist, available at https://www.fd.org/litigation-support/resource-materials. For a thorough framework of how to think about electronic discovery, see Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases, Douglass Mitchell and Sean Broderick (2012).