eDiscovery Daily Blog

• January 15, 2018

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars, including our webinar last Thursday (Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018), which was great.  If you missed it, you can check out the replay here.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes.  Now, Tom has written another terrific overview for Understanding eDiscovery in Criminal Cases that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Criminal cases have long been thought of as an arena devoid of electronic discovery issues.  In fact, in 2012 eDiscovery expert Craig Ball wrote in a column regarding the then recently published “Recommendations for Electronically Stored Information Discovery Production in Federal Criminal Cases,” that “… apart from meeting Brady obligations, I think most lawyers regard criminal law as an area where there is no discovery, let alone this new-fangled e-discovery.”

But attorneys who regularly handle criminal cases know that was not the case then, and it is certainly not the state of the field now.  This paper shares a short history of the development of standards for eDiscovery in criminal matters, focusing on specific examples from the Federal court system. It also highlights main issues of importance regarding eDiscovery in criminal matters.

BACKGROUND

In 2004, Judge Marcia Pechman of the Western District of Washington presided over the white-collar case against Kevin Lawrence and his company, Znetix.  That case had nearly 1.5 million scanned electronic documents which at the time was considered an extremely high volume and caused logistical problems for both the parties and the Court.  In 2005, after that trial had concluded, Judge Pechman convened a group of attorneys from the U. S. Defenders Office and the US Attorney in Seattle to discuss more efficient and cost-effective ways to deal with electronic documents in large cases.  This group included Russ Aoki, then a Criminal Justice Act (CJA) Panel attorney appointed to represent Mr. Lawrence and now Coordinating Defense Attorney in complex matters for the Defenders.

That group created a set of best practices policies for large document cases and wiretap surveillance evidence. Those policies were in effect in the Seattle federal court as a local rule for many years before the document mentioned by Craig Ball in his column.  Several other groups then began meeting around the country, eventually resulting in the 2012 protocol which was actually a project of a Joint Technology Working Group of federal criminal practitioners created by the Director of the Administrative Office of the United States Courts (the supervising agency of the U.S. Defenders Office) and the U.S. Attorney General.

The point of this timeline is to show that although attorneys working in the criminal areas have a duty to preserve and produce electronically stored information (ESI) just as their civil brethren do, most state and federal criminal discovery is statutory, or rule-based.  Constitutional concepts apply in much the same manner as the FRCP guide civil matters, to ensure a fair trial and due process, and include the right against self-incrimination and the right against unreasonable searches and seizures.

But criminal cases involve some issues specific to that practice, and it is those we will now discuss.

Issues

An excellent overview of all the issues involved in criminal eDiscovery practice can be found in Criminal Ediscovery: A Pocket Guide for Judges. A 2015 publication of the  Federal Judicial Center authored by Sean Broderick, National Litigation Support Administrator, Administrative Office of the U.S. Courts, Defender Services Office; Donna Lee Elm, Federal Defender Middle District of Florida; Andrew Goldsmith, Associate Deputy Attorney General & National Criminal Discovery Coordinator U.S. Department of Justice; John Haried, Co-Chair, eDiscovery Working Group — EOUSA U.S. Department of Justice and Kirian Raj, Senior Counsel to the Deputy Attorney General U.S. Department of Justice.

That work focuses on a number of issues that are beyond the scope of this document and should be consulted as a resource.  This discussion, however, will focus on the following issues:

1. Overview of Rules for Criminal Matters
2. Issues Managing ESI Data in Criminal Cases
   • How Data is Acquired
   • Common Data Types
   • Data Exchange Formats
   • Time Issues Specific to Criminal ESI
3. Working with Social Media as Evidence
4. Border Entry

We’ll publish Part 2 – Overview of Rules for Criminal Matters – on Wednesday.

So, what do you think?  Do you handle criminal cases and have a lot of eDiscovery? Read more about it in the following parts of our eDiscovery in Criminal Cases series and see how it may impact you and your organization.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.