Common use of United States x Clause in Contracts

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Subdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to (b)(1)(C), infra. Subdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxx, including names and expected testimony of both defense and government expert witnesses. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under Rule

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. Page 91 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 17 See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Subdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to (b)(1)(C), infra. Subdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxx, including names and expected testimony of both defense and government expert witnesses. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under RuleRule 12.2 by requesting more specific information about the expert. If the government requests the specified infor- mation, and the defense complies, the defense is enti- tled to reciprocal discovery under an amendment to subdivision (a)(1)(E), supra. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 16 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rule 16(a)(1)(A) is now located in Rule 16(a)(1)(A), (B), and (C). Current Rule 16(a)(1)(B), (C), (D), and (E) have been relettered. Amended Rule 16(b)(1)(B) includes a change that may be substantive in nature. Rule 16(a)(1)(E) and 16(a)(1)(F) require production of specified information if the gov- ernment intends to ‘‘use’’ the information ‘‘in its case- in-chief at trial.’’ The Committee believed that the lan- guage in revised Rule 16(b)(1)(B), which deals with a de- fendant’s disclosure of information to the government, should track the similar language in revised Rule 16(a)(1). In Rule 16(b)(1)(B)(ii), the Committee changed the current provision which reads: ‘‘the defendant in- tends to introduce as evidence’’ to the ‘‘defendant in- tends to use the item . . .’’ The Committee recognized that this might constitute a substantive change in the rule but believed that it was a necessary conforming change with the provisions in Rule 16(a)(1)(E) and (F), noted supra, regarding use of evidence by the govern- ment. In amended Rule 16(d)(1), the last phrase in the cur- rent subdivision—which refers to a possible appeal of the court’s discovery order—has been deleted. In the Committee’s view, no substantive change results from that deletion. The language is unnecessary because the court, regardless of whether there is an appeal, will have maintained the record.

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within Page 89 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 17 the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Subdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to (b)(1)(C), infra. Subdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxx, including names and expected testimony of both defense and government expert witnesses. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under RuleRule 12.2 by requesting more specific information about the expert. If the government requests the specified infor- mation, and the defense complies, the defense is enti- tled to reciprocal discovery under an amendment to subdivision (a)(1)(E), supra. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 16 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rule 16(a)(1)(A) is now located in Rule 16(a)(1)(A), (B), and (C). Current Rule 16(a)(1)(B), (C), (D), and (E) have been relettered. Amended Rule 16(b)(1)(B) includes a change that may be substantive in nature. Rule 16(a)(1)(E) and 16(a)(1)(F) require production of specified information if the gov- ernment intends to ‘‘use’’ the information ‘‘in its case- in-chief at trial.’’ The Committee believed that the lan- guage in revised Rule 16(b)(1)(B), which deals with a de- fendant’s disclosure of information to the government, should track the similar language in revised Rule 16(a)(1). In Rule 16(b)(1)(B)(ii), the Committee changed the current provision which reads: ‘‘the defendant in- tends to introduce as evidence’’ to the ‘‘defendant in- tends to use the item . . .’’ The Committee recognized that this might constitute a substantive change in the rule but believed that it was a necessary conforming change with the provisions in Rule 16(a)(1)(E) and (F), noted supra, regarding use of evidence by the govern- ment. In amended Rule 16(d)(1), the last phrase in the cur- rent subdivision—which refers to a possible appeal of the court’s discovery order—has been deleted. In the Committee’s view, no substantive change results from that deletion. The language is unnecessary because the court, regardless of whether there is an appeal, will have maintained the record.

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT Notes of Advisory Committee on Rules—1994 Amendment The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Notes of Advisory Committee on Rules—1997 Amendment Subdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to (b)(1)(C), infra. Subdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxx, including names and expected testimony of both defense and government expert witnesses. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under RuleRule 12.2 by requesting more specific information about the expert. If the government requests the specified infor- mation, and the defense complies, the defense is enti- tled to reciprocal discovery under an amendment to subdivision (a)(1)(E), supra. References in Text The Federal Rules of Evidence, referred to in subds. (a)(1)(E) and (b)(1)(C), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 1975 Amendments Subd. (a)(1). Pub. L. 94–64 amended subpars. (A), (B), and (D) generally, and struck out subpar. (E).

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. Page 91 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 17 See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Subdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to (b)(1)(C), infra. Subdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxxtixx, including names and expected testimony of both defense and government expert witnesses. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under RuleRule 12.2 by requesting more specific information about the expert. If the government requests the specified infor- mation, and the defense complies, the defense is enti- tled to reciprocal discovery under an amendment to subdivision (a)(1)(E), supra. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 16 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rule 16(a)(1)(A) is now located in Rule 16(a)(1)(A), (B), and (C). Current Rule 16(a)(1)(B), (C), (D), and (E) have been relettered. Amended Rule 16(b)(1)(B) includes a change that may be substantive in nature. Rule 16(a)(1)(E) and 16(a)(1)(F) require production of specified information if the gov- ernment intends to ‘‘use’’ the information ‘‘in its case- in-chief at trial.’’ The Committee believed that the lan- guage in revised Rule 16(b)(1)(B), which deals with a de- fendant’s disclosure of information to the government, should track the similar language in revised Rule 16(a)(1). In Rule 16(b)(1)(B)(ii), the Committee changed the current provision which reads: ‘‘the defendant in- tends to introduce as evidence’’ to the ‘‘defendant in- tends to use the item . . .’’ The Committee recognized that this might constitute a substantive change in the rule but believed that it was a necessary conforming change with the provisions in Rule 16(a)(1)(E) and (F), noted supra, regarding use of evidence by the govern- ment. In amended Rule 16(d)(1), the last phrase in the cur- rent subdivision—which refers to a possible appeal of the court’s discovery order—has been deleted. In the Committee’s view, no substantive change results from that deletion. The language is unnecessary because the court, regardless of whether there is an appeal, will have maintained the record.

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT Notes of Advisory Committee on Rules—1994 Amendment The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Subdivision References in Text The Federal Rules of Evidence, referred to in subds. (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to ) and (b)(1)(C), infraare set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Subdivision 1975 Amendments Subd. (b)(1)(Ca)(1). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxxPub. L. 94–64 amended subpars. (A), including names (B), and expected testimony of both defense (D) generally, and government expert witnessesstruck out subpar. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under Rule(E).

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT Notes of Advisory Committee on Rules—1994 Amendment The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Notes of Advisory Committee on Rules—1997 Amendment Subdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to (b)(1)(C), infra. Subdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxx, including names and expected testimony of both defense and government expert witnesses. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under Rule

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT Notes of Advisory Committee on Rules—1994 Amendment The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. Page 91 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 17 See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Subdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure Notes of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to (b)(1)(C), infra. Subdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxx, including names and expected testimony of both defense and government expert witnesses. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely Advisory Committee on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under RuleRules—1997 Amendment

United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional Rule 17 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE xxxxxx defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defense stipulate or admit that such persons were in a position to bind the defendant. NOTES OF ADVISORY COMMITTEE ON RULES—1997 AMENDMENT Subdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amend- ed in 1993, the defense is entitled to disclosure of cer- tain information about expert witnesses which the gov- ernment intends to call during the trial. And if the gov- ernment provides that information, it is entitled to re- ciprocal discovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is trig- gered by a government request for information con- cerning defense expert witnesses as to the defendant’s mental condition, which is provided for in an amend- ment to (b)(1)(C), infra. Subdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial disclosure of informa- xxxx, including names and expected testimony of both defense and government expert witnesses. Those disclo- sures are triggered by defense requests for the informa- tion. If the defense makes such requests and the gov- ernment complies, the government is entitled to simi- lar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant’s mental condi- tion, the government may request the defense to dis- close information about its expert witnesses. Although Rule 12.2 insures that the government will not be sur- prised by the nature of the defense or that the defense intends to call an expert witness, that rule makes no provision for discovery of the identity, the expected testimony, or the qualifications of the expert witness. The amendment provides the government with the lim- ited right to respond to the notice provided under RuleRule 12.2 by requesting more specific information about the expert. If the government requests the specified infor- mation, and the defense complies, the defense is enti- tled to reciprocal discovery under an amendment to subdivision (a)(1)(E), supra. REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subds. (a)(1)(E) and (b)(1)(C), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 1975 AMENDMENTS Subd. (a)(1). Pub. L. 94–64 amended subpars. (A), (B), and (D) generally, and struck out subpar. (E).