ADVISORY COMMITTEE 

ON 

CRIMINAL RULES

RULE 16 MINI-CONFERENCE

Washington, DC

February 7, 2017

TABLE OF CONTENTS

CRIMINAL RULE 16 MINI-CONFERENCE

February 7, 2017 

AGENDA ..................................................................................................................................... 5 

TAB 1 Reporters’ Memorandum to Mini-Conference Participants 

(January 12, 2017) ................................................................................................ 9 

TAB 2 Draft Rule Text

Option 1: DOJ Draft ......................................................................................... 21 

Option 2: A Stand-Alone Alternative ............................................................ 25 

Option 3: New Section for Electronically Stored Information ................... 31 

TAB 3 List of Mini-Conference Participants ............................................................. 35 

TAB 4 Suggestion 16-CR-B (New York Council of Defense Lawyers 

and National Association of Criminal Defense Lawyers) ........................... 39 

TAB 5 Excerpt from the Draft Minutes of the September 2016 Meeting of the 

Advisory Committee on Criminal Rules ....................................................... 49

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AGENDA 

CRIMINAL RULE 16 MINI-CONFERENCE

February 7, 2017 

Administrative Office of the U.S. Courts 

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, NE, Washington, DC 20544 

Mecham Conference Center 

8:00-9:00am Breakfast 

9:00-9:15am Welcome and Introduction 

 

9:15-10:30am Discussion of whether there is a need for an amendment

10:30-10:45am Break

10:45am-12:00pm Discussion of the categories of cases that should be subject to an 

amendment

12:00-1:00pm Lunch 

1:00-3:30pm Discussion of drafting issues including comments on Options 1, 2, 

and 3

3:30pm Adjourn

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TAB 1 

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MEMO TO: Participants in Rule 16 Mini-Conference

FROM: Professors Sara Sun Beale and Nancy King, Reporters

RE: Rule 16 Proposals 

DATE: January 12, 2017 

 

I. Introduction

The Advisory Committee on Criminal Rules is considering amending the Rules to 

address discovery in complex cases. This conference is the result of the Committee’s decision 

that it would be useful to collect additional information about the problem(s) such an amendment 

might address and potential responses, and to obtain focused comments and critiques of specific 

proposals. Conference participants have been invited to share their experience and advice with 

the members of the Advisory Committee’s Rule 16 Subcommittee: 

Judge Raymond Kethledge (Sixth Circuit Court of Appeals) (chair)

Judge Gary Feinerman (N.D. Illinois) 

Judge Donald Molloy (D. Montana) (Advisory Committee chair)

Mark Filip, Esq. 

John Siffert, Esq. 

Prof. Orin Kerr

Jonathan Wroblewski (U.S. Department of Justice) 

Michelle Morales (U.S. Department of Justice)

Judge Amy St. Eve (N.D. Illinois) (Standing Committee liaison) (ex officio)

A list of participants is included at the end of this memo.

This memo lists issues on which the Subcommittee seeks conference participants’ views

and provides three versions of a proposed rule for participants to critique (Options 1, 2, and 3). 

Participants are also welcome to raise additional issues.

As additional background for the discussion, we have included a letter from the New 

York Council of Defense Lawyers and National Association of Criminal Defense Attorneys 

proposing an amendment to Rule 16 for complex cases, and excerpts of the draft minutes of the 

Advisory Committee’s fall meeting at which there was a preliminary discussion of the 

NYCDL/NACDL proposal and other options for amending Rule 16. 

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II. Issues for Discussion

1. Is any amendment needed? Do existing Rules address this adequately? 

Is the problem better addressed by non-Rules actions such as judicial 

training? 

The most fundamental question is whether there is any need to amend Rule 16. Some 

have suggested that experienced judges already manage these complex cases and problems well, 

and that providing resources and training to the less experienced judges would be sufficient. But 

others maintain that even experienced judges sometimes fail to recognize or refuse to address the 

difficulties that defendants face in these cases, and that an amendment to the Criminal Rules is 

warranted (though providing resources and training would also be helpful). 

This issue is closely related to the next question, about the kinds of cases—if any—that 

pose the problems that may warrant a change in the Rules of Criminal Procedure.

 We would like participants to (1) describe their experiences in complex cases involving 

particularly voluminous discovery (including, but not limited to ESI), and (2) share their initial 

views on the question whether an amendment to the Rules would be desirable in light of those 

experiences.

2. If Rules action is warranted, how should the category of cases warranting 

separate treatment be defined and limited by the text of the proposed 

rule? Cases involving ESI? Cases involving “voluminous” discovery? Is 

it “complexity” that creates these problems? How specifically should 

these cases be described?

We would like participants to discuss the specific problem or problems they think the 

Rules should address. Is it the difficulty navigating and managing electronically stored 

documents? Does digital information in the form of audio or video pose problems as well as text 

and data? Are there other types of evidence, such as expert or scientific evidence, that existing 

rules do not adequately address? Is it the quantity of material, regardless of its nature, that poses 

difficulties? Are there problems in cases with a large number of charges or defendants? 

 Another key question is how specific to make the description of the type of case 

warranting modified procedures. An advantage of using a general term like “complex” is that it 

would accommodate change and permit maximum flexibility. A disadvantage of a general term 

is that it provides little guidance for judges and lawyers. 

If the Rule itself did not specify what factors or features would warrant departures from 

default schedules and rules, some guidance to counsel could be provided by illustrations in the 

Committee Note. It would be helpful to hear participants’ views on the desirability of using the 

Committee Note for this purpose. 

We list below a variety of more specific questions we hope participants will address. 

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3. Should a new rule specify which factors a judge should consider in 

assessing whether a non-standard approach is warranted? 

See discussion about specificity of description in point 2, supra.

4. Should the language of a new rule require or reference a party or defense 

request? 

If the rule is mandatory (see point 7 below), then the terms under which judicial action is 

required should be very clear. For example, the rule might require that the defendant raise the 

issue by a motion (and might set a time limit for the motion). Only when the specified 

conditions are met would the rule mandate action by the judge. (It is also possible that such a 

motion might become routine, like a Brady request, and raised in every case.) 

If the rule is permissive and non-enforceable, then a defense request seems less essential.

If a request is to be specified in the text of the rule, should it be limited to defendants, or 

also include the government? 

5. Should the language identify specific measures that might be appropriate, 

such as the provision of an index?

We think answering this question requires first deciding whether timing alone is at issue. 

If the proposed rule is only about granting the defense more time, then further specifics about 

potential measures are probably unnecessary. Some believed that accommodation should or at 

least may include more than scheduling adjustments (which, as some observed, are already 

contemplated by 18 U.S.C § 3161(h)(7(B)(ii) for cases that are “complex, due to the number of 

defendants, the nature of the prosecution, or the existence of novel questions of fact or law”). 

The problem in some cases, they argued, is not just timing, it is that information is provided in a 

form that cannot be electronically searched or is otherwise unusable. 

6. Should the text or note address the Jencks Act or other parts of Rule 16 

limiting judicial power to order pretrial disclosure of witness 

information? 

 If the new rule could be interpreted as authorizing a judge to order pretrial disclosure of 

witness statements, it may conflict with Rule 16(a)(2) and 18 U.S.C. § 3500(a). To make it clear 

that the Rule is not intended to have that effect, clarifying language could be added to the text or 

Committee Note.

7. Should the language be mandatory and enforceable on appeal, or 

permissive?

 Whether a rule regarding judicial management of discovery in complex cases should be 

mandatory or permissive may turn in part upon whether and to what degree appellate oversight 

of district court compliance is desired. A new rule mandating that the judge make a specified 

determination or consider specified factors would presumably be enforceable on appeal, like

other rules requiring that judges do or refrain from doing something. Examples of rules 

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requiring the court to make a specified determination include Rule 11(b)(3) requiring 

determination of factual basis, Rule 30(b) mandating a ruling on instructions before closing 

arguments, Rule 32(i)(3)(B) requiring ruling on disputes about the PSR, and Rule 32.2(b)(1)(A), 

mandating forfeiture determinations. Examples of rules or statutes requiring the court to 

consider specified factors include Rule 18 (“due regard for the convenience of the defendant, any 

victim, and the witnesses, and the prompt administration of justice”), Rule 60(a)(2) (consider 

“reasonable alternatives to exclusion”), and of course 18 U.S.C. § 3553(a).

In general, appellate review of judicial action or inaction prior to trial must await a final 

judgment. A claim on appeal that the trial judge violated a mandatory rule could result in 

remand for new trial if the trial court abused its discretion and the error was not harmless.1 The

abuse of discretion standard is applied to other rulings under Rule 16(d), but conceivably a 

different standard of review could be specified for any new obligations. 

A permissive rule would not be enforceable on appeal, but it could both “send a signal” 

regarding preferred judicial behavior and eliminate any argument that the action described was 

NOT permitted. Rule 17.1 is such a rule, making a pretrial conference entirely optional, but 

regulating aspects of that conference if held. See also Rule 14(b) (providing court may order in 

camera disclosure of defense statement), Rule 21(b) (providing a court may transfer a case upon 

defense motion), and Rule 28 (providing the court may appoint an interpreter). Rules may 

suggest but not require considerations of certain factors as well, such as Rule 35(b)(3), stating 

the court may consider the defendant’s presentence assistance.

8. Should proposed text addressing discovery in these cases be folded into 

existing Rule 16, or rather appear in a new, stand-alone rule, numbered 

Rule 16.1 

Most of Rule 16 requires or prohibits certain actions by parties, not the court. Only 

section (d) regulates judicial action. New mandates or advice to judges concerning managing 

discovery could easily be added to this section and would be easy to find. Amending section (d) 

also has the advantage of not requiring a duplicate sanctions provision. 

On the other hand, a new rule might bring more attention to this particular problem. It 

also suggests a more radical departure from all of Rule 16 than a new subsection in existing Rule 

16 suggests.

III. Example Proposals

Three possible alternatives for an amendment are included here. 

A. Option 1: DOJ Draft

At the request of the Committee, the Department of Justice has submitted an amendment 

that the Department (under the current administration) has agreed to support. Given how 

 1 Interlocutory review may, however, be available for a judicial decision to impose certain 

sanctions.

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difficult it has been in the past to secure DOJ agreement for amendments to Rule 16, we believe 

it would be prudent to include the DOJ’s draft as one of the examples that the Subcommittee 

circulates to conference participants. 

Note that the DOJ draft resolves the issues listed above as follows. 

1. Assumes an amendment would be useful. (But note DOJ has not advocated 

for an amendment.) 

2. Limited to “cases where the volume or nature of discovery materials, 

including electronically stored information, significantly increases the 

complexity of the case.” 

3. Does not specify factors to consider in the text; references ESI protocol and 

STA in note.

4. Does not require or reference a defense request. 

5. Limits suggested judicial responses to alteration of timing of disclosure or 

inspection only. Does not authorize alterations from the nature or scope of 

disclosure. States: “enter a scheduling order or grant other appropriate relief 

to address the timing of the parties’ disclosure or inspection.” Does, 

however, reference ESI protocol in the Committee Note. 

6. Limits authority to “relief to address the timing of the parties’ disclosure or 

inspection pursuant to this Rule.” Addresses changes in timing of disclosure 

and does not alter substance of disclosure. 

7. Permissive, not mandatory. A court is free to ignore the new language or stick 

with Rule 16 standards if it chooses: “the court may enter a scheduling order 

or grant other appropriate relief.” Any order a court chooses to enter would 

be enforceable as any other discovery order.

8. Adds text to existing Rule 16. 

B. Option 2: A Stand-Alone Alternative

Option 2 shows a version of what a new Rule 16.1 might look like. This draft resolves 

the issues above as follows.

1. Assumes an amendment would be useful. 

2. Limited to cases that are “complex, based on factors including the quantity 

and nature of discovery materials and charges.” 

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3. Specifies the following required, but non-exclusive factors to consider in the 

text: “including the quantity and nature of discovery materials and charges.” 

4. Limits defense entitlement to such a determination to cases in which a motion 

is made within 30 days of arraignment. Does not preclude a court’s sua 

sponte determination without defense motion. 

5. Bracketed language would authorize alterations from the nature or scope of 

disclosure as well as timing, limits to measures that would facilitate the 

parties’ ability to prepare for trial and that are in the interests of justice. 

States: “modifying the timing [or other aspects] of disclosure or inspection in 

order to facilitate the parties’ ability to prepare for trial.” 

6. Does not mention Jencks or other restrictions of Rule 16 directly, but 

alteration in timing or other aspects of disclosure or inspection leave open that 

possibility. 

7. Mandatory, not permissive. The text REQUIRES the court to make a 

determination upon timely motion. The text also REQUIRES the court to 

consider, at least, “the quantity and nature of discovery materials and 

charges,” and REQUIRES the court to consider, if it determines the case is 

complex, “whether, in the interests of justice, to adopt measures modifying the 

timing [or other aspects] of disclosure or inspection in order to facilitate the 

parties’ ability to prepare for trial.”

These three mandates presumably would support appellate relief, just as other mandates 

in Rule 16 can be enforced. Claims regarding discovery must await a final judgment. Assuming 

the claim is adequately preserved, an appellate court could decide that a new trial is required if a 

trial court abused its discretion by failing to (1) make a determination, (2) consider the specified 

factors, or (3) consider whether the interests of justice require modifications, assuming that the 

error was not harmless. Certain sanctions for discovery violations may be the subject of 

interlocutory appeal. 

8. Creates a separate rule.

C. Option 3: New Section for Electronically Stored Information 

Option 3 addresses only the format and table of contents for ESI, and resolves the issues 

listed above as follows. 

1. Assumes an amendment would be useful. 

2. Limited to disclosure of electronically stored information. 

3. Does not specify factors to consider. 

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4. Does not require or reference a defense request.

5. Requires that the format must be “reasonably usable,” that the format 

“conform to industry standards,” and that the information include a “suitable 

table of contents.” A court may allow a party to dispense with one or more of 

these requirements upon a showing of good cause. 

6. Limits requirement to format and table of contents; does not mention Jencks

or other restrictions of Rule 16. 

7. Mandatory, unless party first shows good cause. 

8. Adds text to existing Rule 16.

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TAB 2 

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OPTION 1 

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Option 1: DOJ Draft

1 Rule 16 

2 . . . 

3 (d) Regulating Discovery 

4 (1) Protective and Modifying Orders. At any time the court 

5 may, for good cause, deny, restrict, or defer discovery or 

6 inspection, or grant other appropriate relief. The court may permit 

7 a party to show good cause by a written statement that the court 

8 will inspect ex parte. If relief is granted, the court must preserve 

9 the entire text of the party's statement under seal.

10 (2) Complex Discovery. In cases where the volume or nature of 

11 discovery materials, including electronically stored information, 

12 significantly increases the complexity of the case, the court may 

13 enter a scheduling order or grant other appropriate relief to address 

14 the timing of the parties’ disclosure or inspection pursuant to this 

15 Rule.

16 (23) Failure to Comply. If a party fails to comply with this rule, 

17 the court may: 

18 (A) order that party to permit the discovery or inspection; 

19 specify its time, place, and manner; and prescribe other just terms 

20 and conditions; 

21 (B) grant a continuance;

22 (C) prohibit that party from introducing the undisclosed 

23 evidence; or

24 (D) enter any other order that is just under the circumstances.

25 

26 ADVISORY COMMITTEE NOTE

27 This amendment is intended to specifically address cases 

28 that involve exceptionally large amounts of discovery, which is 

29 increasingly being provided in the form of electronically stored 

30 information, or ESI. Changes in information technology have 

31 increased the complexity of ESI discovery, and courts have a direct 

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32 interest in ensuring that ESI discovery is managed effectively. 

33 Although courts currently have the authority to enter or modify 

34 scheduling orders in complex cases pursuant to Speedy Trial Act 

35 (18 U.S.C § 3161(h)(7(B)(ii)), and the qualifications and 

36 protections under that Act still apply, the amendment is intended to 

37 serve as a reminder that in a subset of complex cases where 

38 discovery is voluminous, standard or standing scheduling orders 

39 may not be appropriate. Rather, courts may instead enter 

40 scheduling orders modified or designed to best serve the specific 

41 case before the court. In such cases, the courts and the parties may 

42 also benefit from the guidance provided by the Federal Judicial 

43 Center’s publication: “CRIMINAL E-DISCOVERY: A Pocket 

44 Guide for Judges” found at 

45 http://www.fjc.gov/public/pdf.nsf/lookup/Criminal-e46 Discovery.pdf/$file/Criminal-e-Discovery.pdf, as well as the 

47 “Recommendations for Electronically Stored Information (ESI) 

48 Discovery Production in Federal Criminal Cases,” found at 

49 https://www.fd.org/docs/litigation-support/final-esi-protocol.pdf, 

50 as issued by the Joint Working Group on Electronic Technology in 

51 the Criminal Justice System; and the Guidance for the Provision of 

52 ESI to Detainees. 

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OPTION 2 

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Option 2: A Stand-Alone Alternative

1 Rule 16.1. Complex Cases: Pretrial Disclosure. 

2 (a) Determining Whether a Case Is Complex. Upon a 

3 party’s motion filed within 30 days of arraignment, the court 

4 shall determine whether the case is complex. The court may 

5 also make the same determination on its own motion at any 

6 time.

7 (b) Determining Whether to Modify Pretrial 

8 Disclosure. If the court determines that a case is complex, 

9 the court shall consider whether, in the interests of justice, to 

10 adopt measures modifying the timing [or other aspects] of 

11 disclosure in order to facilitate the parties’ ability to prepare 

12 for trial.

13 (c) Remedies for Failure to Comply. If a party fails to 

14 comply with an order entered under this rule, the court may 

15 enter any order that is just under the circumstances.

16

17 ADVISORY COMMITTEE NOTE

18 This new rule allows the court to modify pretrial 

19 disclosure in cases of unusual complexity, such as cases 

20 involving exceptionally large amounts of discovery

21 provided in the form of electronically stored information 

22 (ESI). In a subset of complex cases, standard scheduling 

23 orders and discovery procedures may not be appropriate. 

24 Rather, courts may instead enter scheduling and discovery 

25 orders modified or designed to best serve the specific case 

26 before the court and ensure adequate preparation for trial. 

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27 The new rule allows the parties to seek a 

28 determination at an early stage in the proceedings whether 

29 the unusual complexity of a case warrants modifications of 

30 standard scheduling orders and discovery procedures. 

31 Within 30 days after arraignment, a party may by motion 

32 seek a ruling that the case is complex. A court may also 

33 rule, sua sponte, that a case is complex. 

34 If the court rules that a case is complex, it may 

35 adjust the standard scheduling orders. Courts have the 

36 authority to enter or modify scheduling orders in complex 

37 cases pursuant to Speedy Trial Act (18 U.S.C § 

38 3161(h)(7(B)(ii)), and the qualifications and protections 

39 under that Act apply to orders under the new rule. 

40 The new rule also makes clear that courts have the 

41 authority modify other aspects of the discovery process in 

42 complex cases to facilitate the parties’ preparation for trial. 

43 For example, cases in which discovery includes 

44 voluminous ESI may require that disclosure include an 

45 index, that material be provided in a searchable format, or 

46 other measures. In such cases, the courts and the parties 

47 may also benefit from the guidance provided by the Federal 

48 Judicial Center’s publication: “CRIMINAL E-DISCOVERY: 

49 A Pocket Guide for Judges” found at 

50 http://www.fjc.gov/public/pdf.nsf/lookup/Criminal-e51 Discovery.pdf/$file/Criminal-e-Discovery.pdf, as well as 

52 the “Recommendations for Electronically Stored 

53 Information (ESI) Discovery Production in Federal 

54 Criminal Cases,” found at 

55 https://www.fd.org/docs/litigation-support/final-esi56 protocol.pdf, as issued by the Joint Working Group on 

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57 Electronic Technology in the Criminal Justice System; and 

58 the Guidance for the Provision of ESI to Detainees. 

59

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OPTION 3 

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Option 3: New Section for Electronically Stored Information

1 Rule 16 Discovery and Inspection. 

2 * * * * *

3 (c) Disclosure of Electroncially Stored Information. Unless good 

4 cause is shown, electronically stored information subject to production 

5 must be produced in a reasonably usable format that conforms to industry 

6 standards and includes a suitable table of contents. 

7 (ed) Regulating Discovery. 

8 * * * * * 

9 COMMITTEE NOTE

10 The amendment adds a new section (c), to address discovery of 

11 electronically stored information. The new section includes three 

12 requirements for producing such information: that the format must be 

13 “reasonably usable,” that the format “conform to industry standards,” and 

14 that the information include a “suitable table of contents.” A court may 

15 allow a party to dispense with one or more of these requirements upon a 

16 showing of good cause. Courts and the parties may also benefit from the 

17 guidance provided by the Federal Judicial Center’s publication: 

18 “CRIMINAL E-DISCOVERY: A Pocket Guide for Judges” found at 

19 http://www.fjc.gov/public/pdf.nsf/lookup/Criminal-e20 Discovery.pdf/$file/Criminal-e-Discovery.pdf, as well as the 

21 “Recommendations for Electronically Stored Information (ESI) Discovery 

22 Production in Federal Criminal Cases,” found at 

23 https://www.fd.org/docs/litigation-support/final-esi-protocol.pdf, as issued 

24 by the Joint Working Group on Electronic Technology in the Criminal 

25 Justice System; and the Guidance for the Provision of ESI to Detainees. 

26 Current subdivision (c) has been renamed (d).

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TAB 3 

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Mini-Conference Participants

Advisory Committee on Criminal Rules

Hon. Donald W. Molloy

Chair

U.S. District Court, Missoula, MT

Prof. Sara Sun Beale

Reporter 

Duke Law School, Durham, NC

Prof. Nancy King

Associate Reporter 

Vanderbilt University Law School, Nashville, TN

Criminal Rule 16 Subcommittee

Hon. Raymond M. Kethledge

Chair

U.S. Court of Appeals, Ann Arbor, MI

Hon. Gary Feinerman

U.S. District Court, Chicago, IL

Mark Filip, Esq.

Kirkland & Ellis LLP, Chicago, IL 

Prof. Orin Kerr

George Washington Law School, Washington, DC

Michelle Morales, Esq.

DOJ Policy & Legislation Office, Washington, DC

Hon. Amy J. St. Eve (ex officio)

U.S. District Court, Chicago, IL

John Siffert, Esq.

Lankler Siffert & Wohl LLP, New York, NY

Jonathan Wroblewski, Esq.

DOJ Policy & Legislation Office, Washington, DC

Participants

David Adler, Esq.

Bellaire, TX

Russell Aoki, Esq.

Aoki Law PLLC, Seattle, WA 

Sean Broderick

AO Defender Services Office, Oakland, CA 

Amy Harman Burkart, Esq.

Assistant U.S. Attorney, District of MA, Boston, MA

Donna Lee Elm, Esq.

MDFL Federal Public Defender, Tampa, FL

Hon. Jonathan W. Feldman

U.S. District Court, Rochester, NY

Emma Greenwood, Esq.

Emma Greenwood Law Office, New York, NY 

Andrew Goldsmith, Esq.

DOJ Deputy Attorney General Office, Wash., DC

John Haried, Esq.

Assistant U.S. Attorney, District of CO, Denver, CO 

David Markus, Esq.

Markus Moss PLLC, Miami, FL 

David Patton, Esq.

Federal Defenders of NY, Brooklyn, NY 

Catherine Recker, Esq.

Welsh & Recker, Philadelphia, PA 

Roland Riopelle, Esq.

Sercarz & Riopelle, LLP, New York, NY

Alexandra Shapiro, Esq.

Shapiro Arato, New York, NY

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TAB 4 

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TAB 5 

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1 

EXCERPT, DRAFT MINUTES OF CRIMINAL RULES MEETING, SEPTEMBER 2016

B. Rule 16.1 (15-CR-B) 

Judge Kethledge, Chair of the Rule 16 Subcommittee, stated that at the last meeting the 

Committee considered a proposal by NYCDL and NACDL to amend Rule 16 to govern judicial 

management of discovery in complex cases. The proposal was extremely prescriptive, and there 

was widespread opposition to it at the meeting. The Committee set the specific proposal aside 

and discussed cases that involve extremely complex financial transactions or massive quantities 

of data, including a case with hundreds of thousands of audio tapes. The Committee recognized 

that if the judge fails to recognize and address the difficulties that this overwhelming discovery 

can pose for defense counsel, counsel’s ability to prepare for trial can be impaired; cases that 

perhaps should be litigated and go to trial may be settled for reasons unrelated to the merits. 

Judge Molloy appointed a subcommittee and asked it to look at the issue. 

At the Subcommittee’s first call, Judge Kethledge reported, members decided that the bar 

proposal was a non-starter, because you can’t prescribe wisdom. But the Subcommittee thought 

it was worth considering a more modest proposal, and the consensus was that it would be useful 

to create a process that would allow counsel to direct the court’s attention to the problems that 

the defense faces in these kinds of cases. Judge Kethledge stated that this problem is not going 

to arise in the courtroom of an experienced judge, highly engaged, who will craft case 

management orders to accommodate these situations. The concern is that if the judge is 

inexperienced or not as engaged as he should be, Rule 16 procedures become the default and as a 

result counsel will have great difficulty preparing for trial. The Subcommittee tried to come up 

with a mechanism to allow defense counsel to engage the court with the problems these cases 

pose and discussed a number of factors the court could use to consider whether a case is 

“complex” (a term that is probably too broad). 

Several alternatives were drafted after the call, he stated. One was longer, intended to 

assist judges dealing with this sort of thing for the first time. The first section listed a number of 

factors to get the court thinking about the difficulties counsel is facing dealing with the volume 

of data. The second section provided measures that the court could consider if the court 

determines that a case is complex. The third section provided actions the court could take if the 

court has implemented measures and one of the parties does not comply. A second version was 

much shorter and did not lay out all the factors and measures, leaving these to the accompanying 

Committee Note. Subcommittee members’ feedback before the second telephone conference 

suggested that something in between would be better. A third alternative was drafted that simply 

says the party can move to have the court determine if a case is complex; if it is complex the 

court can consider measures that would facilitate preparation for trial; and finally noncompliance could be met with any measure that would advance the interest of justice.

During the Subcommittee’s second call, Judge Kethledge said, DOJ expressed the 

concern that the term “complex” is broader than the problem at hand. If the problem is 

overwhelming discovery, the term complex captures more than that, such as cases in which 

expert testimony is particularly difficult. Judge Kethledge reported that the Subcommittee has 

asked the Department to suggest more narrowly tailored language that would not raise these 

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concerns. He suggested that the Committee’s process might parallel its development of the 

amendments to Rule 41: the Department came to the Committee with some general language, 

and the Committee revised the proposal to be more narrowly tailored to address the particular 

problem the Department had raised. 

Ms. Morales agreed that the Department believes using the term “complex” will invite a 

host of problems. DOJ could support an amendment that would be narrowly targeted to specific 

sorts of cases, that invites the court to stop and consider whether these cases require some 

adjustments. But the language of the Subcommittee drafts opened Pandora’s box and raised a lot 

of issues. The Department has drafted two versions which have yet to be approved for 

submission to the Committee, but she was optimistic that a compromise can be reached. 

Another member suggested that the proposed amendment might use “may” instead of 

“must,” and he spoke against narrowing the potential rule. He said that some members had 

suggested that the rule would make sense in electronic discovery cases, but he is not sure what 

“an electronic discovery case” is. For example, he described a case in the SDNY, with 18 

defendants and 24,000 calls with wiretap materials, and another case with 500,000 audio tapes. 

“Complexity” does cover more than digital issues, he asserted. He recognized that there may be 

a need to triage and deal with electronic issues specifically, but the Criminal Rules should be 

able to accommodate another avenue. This is needed to ensure that judges cannot force trials 

without allowing proper discovery and without the defense having the opportunity to understand 

what the charges are and the proof will be. He said he was not sure what the Pandora’s box 

would be other than fairness to the defense. 

One member noted there is a lot of scar tissue in this area, as generations of proposals to 

amend Rule 16 have come and gone, making it more difficult to address. He hoped that 

compromise language can be reached, and that it will result in a small positive step forward. But 

the reality, he said, is that you have to trust the common sense, pragmatism, and practicality of 

district judges, and you can’t legislate through Rule or otherwise how to handle pretrial 

proceedings or access. For every litigant operating in good faith, he commented, there is another 

trying to figure out reasons to delay a trial or put 400 associates on a case to generate a gajillion 

gigabytes of data. Sometimes judges get frustrated. Sometimes the tribunal doesn’t give as much 

access as it should. But that would be hard to deal with by rule or otherwise. Appellate courts, 

knowing how successful trial judges have been in the past, are not going to be keen about trying 

to manage, outside the bounds of abuse of discretion, how trial judges handle this. 

Another member said it may be more helpful to have something in the rules about 

electronically stored information than it would be to attempt to regulate the discretion of district 

judges in designating particular complex cases. He said it may be helpful to have hearings or 

engage in fact-finding efforts to find out exactly what the problem is and what would solve it, to 

obtain a better understanding of the facts from the defense bar and the government regarding 

which cases need the most attention.

One member said he was pleased the NYCDL/NACDL proposal was a non-starter with 

the Subcommittee. He also saw real downsides to the drafts. One draft was so general it didn’t 

say anything at all. Another would transform whatever litigation now takes place concerning 

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claims that the trial judge in a big criminal case has not adequately accommodated the interests 

of the defendant in a fair trial, whether by aggressive scheduling or insufficient discovery. He 

said the draft would turn the current claim--that the judge’s abuse of discretion resulted in a 

fundamentally unfair trial that didn’t conform to due process—into an argument that nitpicks 

every term in the Rule. He warned that litigation would question whether the judge adequately 

considered the complexity of the charged conduct, what quantity of documents is too many, what 

is the meaning of “likely to be disclosed,” etc. Any rule carries unforeseen complications beyond 

the due process we have now. The problem of inexperienced judges encountering one of these 

cases also occurs on the civil side, and the solution is very different than what is being proposed 

here. There is a manual for complex litigation and conferences to educate judges with multidistrict litigation. That has worked well without any rule amendments. This approach should be 

pursued instead of a Rule, if the problem is inexperienced judges. 

Another member agreed that these training opportunities could be a supplement to a Rule, 

but also noted that the Civil Rules—unlike the Criminal Rules—provide for discovery, requiring 

that the defense be provided with the evidence and witnesses. Normally you can figure out the 

charge, he said, but when you have hundreds of thousands of tapes and gigabytes of data with no 

index, and you do not know what evidence the government is going to use to prove its case, it is 

impossible for the defendant to figure out the defense. It is essential for the defense to know 

where to find the evidence that is relevant is and what the government is relying on. Unless 

judges are required to consider how to give the defense access to that information, there cannot 

be a fair trial. This member also disagreed that the defense would ever want to pour through 

hundreds of thousands of tapes; the defense wants to know which tapes are relevant and might 

rebut the government’s interpretation of the evidence. He noted that even sophisticated judges 

sometimes do not feel the need to allow access needed for a fair trial. If the defense were given 

the index and the government were forced to identify what its exhibits were, the likelihood is that 

there were be more dispositions sooner. Professor Beale asked if these issues are heightened in 

the criminal context because of the bare-bones pleading requirements. The member replied that 

it was both the pleadings and the discovery rules. He added that in criminal cases—unlike civil 

cases—there are no special masters, magistrate judges closely handling discovery, or 

interrogatories for the witnesses that will be called.

 Another member stated that if the defense could get the civil discovery rules and the time 

to conduct discovery, she would give up this proposed rule in a minute. The differences between 

civil and criminal discovery are overwhelming. In 85- 90% of cases defenders in federal cases 

represent poor people, and in those cases they must go to the judge if they want an expert. That 

complicates the situation enormously because the judges rightfully have discretion as to how 

much to spend, who you can hire, at what point you can hire them. Most defense counsel who 

get huge electronic discovery cases and huge multi defendant cases need someone to give their 

time and expertise to work on those cases. Although the protocol for sharing electronically stored 

information exists, and many people worked really hard on it, it isn’t followed, though not 

because the Department of Justice is deliberately failing to follow it. But the Department of 

Justice is huge. And its lawyers change. They got the protocol, and they understood it, and then 

they left. So Federal Defenders are constantly trying to work to get just a table of contents for 

these huge cases, and they don’t always get even that. This is a real problem, she concluded, it 

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impacts all criminal defendants, and it would be worth this Committee’s time to do something to 

make the situation better, even a small first step. 

Ms. Morales responded that this may be more of a resource and training issue, rather than 

a rules issue. She expressed concern that the language of the drafts under consideration by the 

Subcommittee would invite litigation and confuse Rule 16 further, and hope that the 

Departments’ proposed language will address the issues raised. The ESI protocol includes a 

pocket guide for judges, which is the result of years of work of collaboration between the 

Department and Federal Defenders. She said the Department’s drafts will reference it. 

Technology moves quickly, raises many different issues, and requires very careful consideration. 

The protocol and pocket guide address these issues, and the draft could point directly to the 

pocket guide or summarize some of those measures. 

 A judge member stated this is an issue that needs to be addressed, noting he has had 

several cases in which just before trial defense counsel said “We just had dumped on us this 

many audio tapes and this many documents.” The member’s initial reaction was wishing this had 

been brought to his attention earlier so he could have done something about it, or that the parties 

could have worked this out. A judge has the authority to regulate these matters and facilitate 

discovery in this way if the parties cannot work it out themselves. As to how best to bring these 

issues to the attention of the bench and bar, although the non-rules mechanisms are great ideas, 

this member said but the best way would be by a rule. If there is a rule, everybody knows about 

it. Any rule, he said, should put the onus on defense counsel to bring this issue to the court’s 

attention. It is the defendant who is being burdened, and judges should not have to guess when a 

problem might arise or raise something that might be a can of worms that otherwise wouldn’t 

have been opened. The member favored brevity in a rule as opposed to some sort of detailed 

code, and thought that electronic discovery is an acceptable way to define the types of cases, but 

only if that term encompasses voluminous audio tapes. 

A member noted that managing criminal discovery is different than civil discovery where 

lawyers have to do more work. This judge said she took the lead from the defense counsel in 

criminal cases as to what they need and that in her experience at least one of the defense counsel 

will take the lead and ask for what they need. Any rule should tell judges what kinds of things 

make a case complex. Sometimes a case is not complex in a general sense, but there are 

thousands of wiretapped conversations, and it is the quantity of discovery and how time 

consuming they are that causes problems. A new judge would want to know what are the things 

that make the case complex, so if it is the volume of discovery, the rule should say that so that a 

judge new to criminal cases will know. The judge may not see this until somewhere later down 

the road, and if the judge needs the reins a little bit early on, it would be good to have a laundry 

list of factors.

 Another member agreed with the comments of the last two speakers and added that like 

Rule 17.1 (which states the court may hold pretrial conferences) a new rule could highlight the 

judge’s options. The note could probably explain hypothetical cases that might need attention. 

Just like 17.1, a short rule could let judges know you can do this on your own, without a defense 

motion (though it will be the defense lawyer making the motion in the vast majority of cases). 

And an amendment could help with the case budgeting process, knowing the defense will be 

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going over the CJA limit because they anticipate this sort of discovery, which will be more 

involved than the ordinary case. A rule would bring it to everyone’s attention. Manuals and 

conferences are also avenues, but this member favored something brief like Rule 17.1 that leaves 

the discretion to the judge. 

 One member observed that the proposal was asking for more active judicial management 

in handling discovery in criminal cases, and also strongly supported the idea of having the 

Federal Judicial center provide complex criminal case training. 

 A member responded to an earlier comment about the impact of a rule on appellate 

litigation, saying he didn’t know what would be so bad about the courts of appeals having to 

articulate guidelines for what constitutes a fair trial. He asked why is it a problem to tell trial 

judges that defense lawyers need to know what the evidence will be, and that they need an index 

so that they can find it. 

Judge Campbell observed that what is proposed in this rule is something judges already 

have the authority to do. Judges already can hold status conferences, set schedules, and at least 

in one circuit, require witness lists from the government and exhibit lists in advance of trial. The 

question is what do you do with the weakest of judges in order to get them to focus on it and 

think about it. He noted that the Civil Rules Committee has wrestled with this on the civil side. 

You write rules for the worst case managers recognizing that the good judges don’t need the 

rules at all, he said. 

He said he was surprised that there are complex cases in other districts that are not 

already coming to the attention of the judges early in the case. Complex cases come to his 

attention regularly by motions, filed primarily by defense attorneys, asking him to designate a 

case as complex for purposes of the Speedy Trial Act. The motion is invariably accompanied by 

a request for a case management conference. He orders the parties to work this out, they provide 

their agreement, and he tweaks it a bit. If a complex case does not come to his attention under the 

Speedy Trial Act, he said, they come in under the Criminal Justice Act because the defense 

lawyers want to get that budget early on, anticipating that it is going to exceed the prescriptive 

amount. 

On fact finding, Judge Campbell reported that the Civil Rules Committee found it useful 

to hold a focus group meeting, called a mini-conference, with about 25 lawyers, judges and some 

academics representing a broad spectrum of views, who meet for a day with the subcommittee 

that is addressing an issue. He said that a month or two ahead of the meeting attendees were sent 

a list of things being considered, including proposed language changes. They were asked to come 

prepared to address those issues. The Committee tried to invite people who were involved in bar 

groups, who would canvas the position of those groups. The day-long session with these very 

well informed people helped the Civil Rules Committee get a much better sense of what is 

happening on the ground and how the rules may make a difference. 

 Judge Sutton expressed support for the criminal equivalent of the manual for complex 

civil litigation. He agreed with the suggestion that the Committee should study how the ubiquity 

of email and new technology has changed discovery in criminal cases, whether that leads to 

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rulemaking or not. He expressed some skepticism about a rule. He reported that about 10 years 

ago the Appellate Rules Committee met at Emory to ask Professor Freer to critique the Rules 

process. Freer’s basic thesis was that the Rules Committees do way too much “small ball,” 

enacting one technical amendment after the other to correct whatever silly problem, on the 

assumption that such amendments do no harm. But 10% of the time there is harm from 

amendments because of unintended consequences. And the broader harm is that the Rules have 

become too complex, increasingly inaccessible to someone who just graduated from law school. 

Judge Sutton recommended being more careful with the small-ball amendments and not 

assuming they are cost-free. Professor Freer was very frustrated that we rarely took on big bold 

projects or stepped back and asked what we are doing here. What concerns me about the 

proposals before the Committee, Judge Sutton said, is that they seem to be the epitome of small 

ball. What is added by the language in the shortest version of the rule, which seems so obviously 

true? On the other hand, he was very skeptical that we could get bolder versions of the 

amendments done. They would be similar to the Rule 16 Brady amendments. Rule 16 has a big 

graveyard of proposals, he noted, and DOJ will oppose any bold proposal. So it looks like the 

options are an amendment that accomplishes very little or facing difficulties in getting approval 

for a bolder proposal. He suggested further study, including a conference to bring in experts and 

people who know what is going on. Finally, he said, he was skeptical of importing anything 

from the civil rules on discovery into the criminal rules. 

 A member followed up, stating that a substantial body of precedent with the Jencks Act 

and bills of particulars will make it hard to do anything really bold. He also observed that this 

discussion about post-indictment discovery is primarily about prosecutions of individuals, 

because corporations tend not to get to this point. 

Judge Kethledge stated that he heard that more clarity about the problem we are 

addressing is needed, and that the suggestion of more fact finding at a mini conference is a good 

one. Judge Molloy stated the Subcommittee with its current chair should consult with Judge 

Campbell about past conferences. He said the proposal makes a legitimate point, but we can use 

the conference to explore whether this is a judge problem or a rule problem. 

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