Among the strongest weapons criminal defendants can arm themselves with for trial is evidence that undermines the credibility of the government’s cooperators, particularly when that evidence comes from the cooperators themselves. But federal defendants often face significant obstacles in obtaining cooperator evidence. Sometimes they do not receive that discovery at all; other times they do not receive it until very close to trial. Defendants seeking such evidence before trial through Rule 17(c) subpoenas of the government’s cooperators must meet demanding standards and follow byzantine procedures. Those hurdles often prove insurmountable, especially when judges take an overly rigid view of Rule 17’s requirements.

One way defendants may sidestep those obstacles is to seek discovery from cooperators through the government under Rule 16(a)(1)(E). That provision empowers defendants to demand production of material discovery in the government’s “possession, custody, or control.” Courts have held that cooperators may fall within the government’s “control” when the terms of their cooperation require them to produce documents and information to the government upon request. In those circumstances, defendants may seek discovery from cooperators through the government—often getting discovery faster and with fewer burdens than using Rule 17 subpoenas.

This article discusses when, how, and why defendants should seek discovery from cooperators through the government itself under Rule16(a)(1)(E). PartI outlines defendants’ general discovery rights under the criminal rules, other statutes, and the Constitution. Part II discusses defendants’ ability to use Rule 16(a)(1)(E) to compel the government to obtain key discovery from its own cooperators under existing precedent, explains why that discovery can be critical before and at trial, and considers potential limitations on this use of Rule 16(a)(1)(E). Finally, Part III explains why obtaining cooperator discovery before trial through the government can be more expedient for defendants than using Rule 17 subpoenas.