Tuesday, December 20, 2016

New Pretrial and Criminal Case Management Order

There’s a new Pretrial and Criminal Case Management Order in town, to be used in all District of Kansas cases without a pretrial order entered on or before January 2, 2017. You’ll want to read the order carefully and discuss it with anyone who helps you calendar deadlines or schedule events. Below are some highlights (but this is not a substitute for reading the Order).

Counsel must consult before the status conference about a number of issues regarding discovery, pretrial motions, and plea negotiations. At the status conference, counsel must present any discovery problems to the Court and be ready to ask for a plea date or propose a pretrial/trial schedule.

Most deadlines are now keyed to the date of arraignment (rather than the trial date).

Discovery is supposed to be provided to the defense, when available, within 30 days of arraignment.

A number of specific items must be produced (without being requested by the defense), including any statements of the client, the client's criminal record, unredacted witness statements with contact information for the witness, expert testimony summaries, and Rule 404(b) evidence.

If the AUSA invokes Jencks (thus refusing to provide witness statements during discovery) the witness statements must be provided at least three days before trial. (The court notes that invocation of Jencks ought to be rare and is subject to an internal agreement that the local U.S. Attorney or Criminal Chief must approve any invocation of Jencks.) The Order specifies that Brady and Giglio trump Jencks and, if information qualifies as Brady/Giglio and Jencks, it must be provided in the normal course of discovery--not held back under Jencks.

Witness statements (see 18 USC 3500 for the definition) must not be given to the defendant or others not affiliated with defense counsel, unless an agreement is reached between the party or there is a court order.

Unless the defense has opted out of receiving discovery (and provided notice of that decision to the AUSA), reciprocal discovery must be disclosed by the defense within 14 days after the government provides discovery.

ESI must be accessible, searchable, and organized. It must be in .pdf, .tiff, or native file formats and any information necessary to access the material must be provided with the discovery.

Any motion to extend the 70-day Speedy Trial Act and to exclude time under ends-of-justice must be filed jointly. The motion will be closely scrutinized and must include very specific information that is listed in the Order. Any motion to designate the case as complex must also include details.

A number of panel attorneys and the FPD office worked, for more than a year, with the Court and U.S. Attorney's Office to craft this Order. It is hoped that it will expedite the discovery process and result in earlier and more thorough production of documents and information.

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