In this article, Jonathan Kossak* and Kirby Behre discuss the impact of Judge Emmet G. Sullivan's decision in United States v. Vo, which invalidated a common pretrial subpoena practice of federal prosecutors in the District of Columbia. "Judge Sullivan's opinion is the latest decision in a long-running cat-and-mouse game between prosecutors and defense counsel on the one hand, who are looking to gain any advantage in the battle for pretrial discovery, and courts on the other hand, who, like Judge Sullivan, are often interested in preserving their discretion over these matters," the authors said.

The authors conclude that a decision should be made early regarding who benefits more from loose practices in pretrial production. "Defense counsel should make this decision early on in their cases, because if they wait, the government may be gathering post-indictment, pretrial information without defense counsel even knowing about it. This is particularly significant in white collar cases, where there is frequently a long lag time between indictment and trial," the authors said.

*Former Miller & Chevalier attorney