On December 1, 2019, the United States Supreme Court adopted Federal Rule of Criminal Procedure 16.1. The rule is called Pretrial Discovery Conference; Request for Court Action and states:
(a) 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.
(b) Request for Court Action. After the discovery conference, one or both parties may ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.
The new rule is the result of a multi-year collaboration of criminal law practitioners along with the Judicial Conference’s Advisory Committee on Criminal Rules to develop a simple rule to promote cooperation between the government and the defense for the exchange of discovery in criminal cases.
The impetus for the rule was to find a solution to the problem that has emerged when the government must produce terabytes of information to the defense due to the collection of electronically stored information (ESI). However, the new rule applies to all federal criminal cases, not just complex cases or those that involve ESI or otherwise large volumes of discovery.
Importantly, the rule requires that the parties meet and confer within 14 days of arraignment to develop a discovery timetable and process. The rule invites the court to become involved in the discovery planning process “to facilitate preparation for trial.” Because the principal objective of Rule 16 is to allow the parties adequate time to prepare for trial, Rule 16.1 codifies the notion that the trial judge should account for counsel’s ability to prepare for trial when issuing a discovery order. This rule could be very valuable for criminal defense attorneys to help manage the timing and content of information it receives from the government and indeed, it encourages judicial assistance without imposing any time limits on seeking that assistance.