## Facts

- Congressman Joseph M. McDade was federally charged with conspiracy, racketeering, and accepting illegal gratuities.
- In pretrial discovery, the government produced an extremely large volume of materials, including documents that filled three rooms of filing cabinets located in offices in Philadelphia, New York, and Virginia.
- The discovery production also included about 2,400 hours of tape-recorded conversations.
- Roughly 100 days before trial, McDade argued that the amount and format of the production made it practically impossible for the defense to determine what would matter at trial and to prepare effectively.
- McDade represented that the defense hired a 12-person team to review the discovery; even then, each member would need about twenty 10-hour days just to listen through the recordings a single time.
- McDade sought an order requiring the government to identify which documents and which recorded conversations (or excerpts) it intended to use at trial.
- The government opposed the request, arguing that, at that stage, McDade had no right to know what the prosecution would use at trial and that forcing such identification would reveal protected attorney work product by disclosing the government’s theory and trial plan.

## Issues

1. Whether, well before trial in a case with exceptionally large discovery, the court should require the government to specify which documents and recorded conversations it intends to introduce at trial.
2. Whether compelling the government to make that designation would improperly require disclosure of prosecution work product and trial strategy.

## Decision

- The court denied McDade’s request to compel the government, at that point in the case, to identify the documents and recorded conversations (or excerpts) it planned to use at trial.
- The court accepted that requiring the government to select and label trial materials in advance would effectively provide a blueprint of the prosecution’s trial strategy and reveal protected work product.
- The court treated the size of the discovery production as a serious practical burden, but not as a basis to expand discovery beyond what criminal procedure requires.

## Legal Principles

- A defendant’s right to discovery generally entitles the defense to access discoverable materials, not to a prosecution-generated index of what the government will offer at trial.
- The prosecution’s selection and compilation of evidence for use at trial can reflect mental impressions and strategy and is commonly protected as attorney work product.
- The fact that discovery is unusually large does not, by itself, create a right to an early, court-ordered preview of the government’s exhibit list or intended proof.
- Courts may address burdens from large productions through scheduling and case-management measures, rather than ordering disclosures that expose the government’s trial plan.

## Conclusion

In this pretrial discovery ruling, the district court refused to require the government to identify, about 100 days before trial, which documents and recorded conversations it intended to use, reasoning that compelled designation would disclose protected work product and trial strategy and that the heavy burden of reviewing an extremely large production did not itself expand the defendant’s discovery rights.


United States v. McDade, 1992 U.S. Dist. LEXIS 19254 (1992)