In a December 2020 article, we highlighted in this blog the amendment of Federal Rule of Criminal Procedure 5(f) in the new Due Process Protections Act (“DPPA” or “the Act”). The Act requires federal courts to enter a Brady order at the outset of all criminal cases and may prompt courts to enter orders setting specific disclosure rules, making it easier to hold prosecutors in contempt for violating such orders. In the five months since the Act went into effect, Courts have varied in their implementation of Rule 5(f), suggesting that discovery orders under the new rule will vary based on the leanings of each particular judge, district, or circuit, and the requirements of each individual case. To date, some courts have decided to succinctly recite the language of Rule 5(f) in their initial orders, essentially reminding the prosecution of its pre-existing discovery obligations. Others are taking a more expansive view in implementing the revised rule, issuing specific and detailed orders addressing the timing, order, and scope of the prosecution’s discovery obligations.

A recent ruling from the Eastern District of Louisiana serves as an example of the more succinct approach. In United States v. Ryan, No. CR 20-65, 2021 WL 795980 (E.D. La. Mar. 2, 2021)—a complex white collar criminal matter involving five defendants and presumably voluminous discovery—one of the defendants moved the court for the entry of a standing Brady order pursuant to newly amended Rule 5 and the DPPA. The defendant also suggested that his proposed order be used as a “model order for use in the Eastern District.” Id. at 1. While the defendant sought entry of a more detailed Brady order than the standard order entered by the Magistrate Judges in the district, the government objected to the proposed order, stating that its contents “go beyond what is required under the Act.” Id.

In addition to an argument that Magistrate Judges are not the appropriate judicial officials to issue Brady orders—which the District Judge flatly rejected—the defendant argued that the standard order was inadequate because it failed to explain relevant precedent and lacked concrete disclosure deadlines. Indeed, as the defendant in Ryan noted, the Magistrate’s order did little more than recite the language of Rule 5. In contrast, the defendant’s proposed order would have provided much more detail, including specific guidance regarding the disclosure of particular categories of evidence, a firm deadline for disclosure, and a detailed process by which the court would address non-compliance as well as the court’s options to remedy the same. However, in the court’s view, the relevant order’s direction to the prosecution to comply with its discovery obligations “within a timely manner. . . provide[d] the necessary flexibility to tackle the moving target that is the government’s obligations under Brady and its progeny.” Id. at 3. Finally, the court articulated its view that the newly amended Rule 5 simply requires orders which serve to “remind[] prosecutors of their obligations under governing law and allow[] the Court to respond appropriately to violations[.]”  Id. at 3.

Courts have not interpreted the amended Rule 5 to require detailed disclosure orders. The Eighth Circuit, for example, has promulgated a model written order—approved by the Eight Circuit Judicial Council and distributed to all District Judges and Magistrate Judges—which simply “confirms” the government’s obligations to disclose exculpatory evidence and advises that failure to do so “may result in consequences[.]” See Eighth Circuit Judicial Council Order, JCO 3153 (October 30, 2020).

Notably, however, the developing practices in other federal districts suggest that the DPPA provides the opportunity for courts to go beyond a perfunctory reminder, if inclined. In the Southern District of New York, for example, Judge Laura Taylor Swain has crafted a Rule 5(f) order that highlights the key holdings of Brady and its progeny, carefully outlines the government’s disclosure obligations, and states explicitly the potential consequences of a failure to comply. See United States v. Shalon, No. 15 CR 333, 2020 WL 6873447 (S.D.N.Y. Nov. 23, 2020). While the court did not impose specific deadlines for disclosure, it did state plainly the requirement that prosecutors disclose to the accused material, favorable evidence “promptly after its existence becomes known” to the government, regardless of whether the government credits it. Id. The order further reminded prosecutors that, even in the context of a guilty plea, Brady evidence must still be disclosed in some circumstances, and encouraged the government to seek in camera review of materials for which disclosure may run afoul of a substantial government interest – such as witness safety, victim rights, or protection of law enforcement sensitive techniques. Id. Finally, the court cautioned that it may impose a wide variety of consequences on prosecutors for failures to comply with its order, including evidentiary sanctions, dismissal of charges, and vacatur of a conviction after trial or a guilty plea. Id.

Judge Swain’s order is unusual in its length and specificity. And while nothing in it alters the government’s now well-known Brady obligations, by stating them plainly and on the record at the commencement of a criminal case, the court signals to prosecutors that it takes those obligations seriously and is prepared to enforce them. Going forward, defense counsel, particularly in complex white collar criminal matters, should consider seeking the entry of more specific and detailed Rule 5(f) orders, particularly if the standard order used in the district lacks such characteristics. While the impact of the DPPA on the government’s discovery obligations will likely continue to vary case by case, district by district, and judge by judge, there is room for advocates to attempt to play a role in its implementation.

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