Case o' The Week: Amazing Grace Restores Discovery Powers to District Courts

The Ninth's en banc decision in W.R. Grace is the most important criminal decision to be issued in -- a week. See United States v. W.R. Grace, __ F.3d __, 2008 WL 2052204 (9th Cir. May 15, 2008) (en banc), decision available here. Coming hard on the heels of the equally excellent Chapman decision, W.R. Grace overrules the Ninth Circuit's old Hicks opinion and affirms a district court's broad discretion to create -- and to enforce -- case management and discovery orders.

Players: Decision by Judge Fisher; zinger of a concurrence by Judge Hawkins.

Facts: Mining company W.R. Grace and its officers were charged criminally for illegally disposing asbestos in Montana. Id. at *1. To handle the huge numbers of witnesses, after a case management conference the district court entered an order with discovery deadlines. The government blew the deadlines – natch. Id. at *2. The court then limited the government’s witness list for trial to what had been disclosed to date. Id. at *2. The government took an interlocutory appeal. A three-judge panel reversed the limitation order under Hicks, and the case went en banc. Id. at *3.

Issue(s): “[D]id the district court in this case have the authority to order pretrial disclosure by the government of its final list of witnesses and evidentiary documents and to exclude witnesses and evidence not timely disclosed in compliance with such orders?” Id. at *1.

Held: “[W] hold that the district court did have the authority to issue and enforce its pretrial orders compelling the government to disclose its witness list and did not abuse its discretion in doing so. We therefore also overrule ... Hicks, ... to the extent that it purported to deny the district court such authority.” Id.

Of Note: For most practitioners, the new discovery rule of W.R. Grace will have the greatest impact. Another important issue in the case, however, is procedure necessary for the government to seek a § 3731 interlocutory appeal.

Traditionally, the Ninth has required the government to elaborate on its assertion that an interlocutory appeal relates to evidence that is substantial proof of material issues, and that the appeal isn’t pursued for to delay. See, e.g., United States v. Loud Hawk, 628 F.3d 1139 (9th Cir. 1979) (en banc). In W.R. Grace, the Ninth abandoned the Loud Hawk rule and will find jurisdiction to consider the government’s interlocutory appeal on a perfunctory “certification” from the U.S. Attorney. Id. at *4.

This new rule is troubling, particularly given the slow pace of the Ninth’s decisions and the fact that our clients often remain in custody while the government takes an interlocutory appeal and seeks en banc review. Judges Hawkins, Pregerson and Wardlaw get this, and dissent from the § 3731 holding in a particularly forceful, persuasive and lengthy analysis. (Check-out id. at *21 n. 9, citing John McKay, Train Wreck at the Justice Department: An Eyewitness Account, 31 Seattle U.L. Rev. 265 (2008)) .

How to Use: Chapman (blog here) and W.R. Grace – decided a week apart – have done more for the effective defense of complex criminal cases than any other Ninth decision in the last several years.

Recall that Chapman upheld the sanction of dismissal of an indictment with prejudice, for the AUSA’s “reckless disregard” of his constitutional discovery obligations. 2008 WL 1946744 (9th Cir. May 6, 2008). In W.R. Grace, the Ninth finally restores power to the district courts to manage their own docket and avoid being gamed by the government.

Marvel at the remarkable case management order that was upheld in W.R. Grace: a finalized government witness list due a year before trial! Granted, the government in this order retained the right to amend its list for rebuttal witnesses, but nonetheless, W.R. Grace represents a sea change in the district court’s ability to force the government to not hide the evidentiary ball.

In any case destined for trial, a very early discovery motion using Chapman and W.R. Grace is in order – along with a request for an early case management conference and (now enforceable) discovery order.

[An important aside: the Ninth expressly doesn’t reach the issue of whether defense witnesses are subject to the same rules. See id. at *7 n. 7.]

For Further Reading: Remember the Ninth's horrible Fort decision, where a bizarre reading of Rule 16 limited disclosure of state police reports in a federal gang case? See 478 F.3d 1099 (Mar. 8, 2007) (blog available here). In Fort, District Judge Alsup (right) had made a number of highly critical findings about the discovery conduct of the AUSAs. See id. at 1108 & n.10.

What Fort denied, Grace now returns – Judge Alsup and his district court colleagues suddenly find themselves armed with extraordinarily powerful tools to respond to the government’s attempts to keep the defense “in the dark.” To quote Martha Stewart, “it’s a good thing.”


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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