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Federal Guidance Issued for the First Time on E-Discovery Best Practices in Criminal Cases

Beveridge & Diamond, P.C., May 30, 2012

Recent widespread attention to discovery problems in criminal cases such as the prosecution of Senator Ted Stevens has prompted the U.S. Department of Justice to explicitly provide guidelines for criminal discovery through a variety of directives to prosecutors.  One such directive is a best practices protocol for the discovery of electronically stored information (“ESI”) in post-indictment criminal cases, released this February.  The protocol is the first public guidance on criminal e-discovery by the Federal Government and was developed by the U.S. Department of Justice (“DOJ”) and Administrative Office of the U.S. Courts’ Joint Working Group on Electronic Technology in the Criminal Justice System (“JETWG”) after consultation with federal prosecutors, public defenders and representatives of the judiciary around the country over an 18 month period.

The protocol begins with ten basic principles to guide the ESI discovery process, many of which have been already adopted in civil litigation, and is then divided into three sections:  (1) recommendations, (2) detailed strategies to implement the recommendations, and (3) a comprehensive “ESI Discovery Production checklist.” Each section provides practical and technical advice for achieving the principles.

The protocol emphasizes an early, organized, and open approach to managing ESI discovery, which has been the norm in civil litigation since the amendment to the Federal Rules of Civil Procedure in 2006.  This cooperative approach may not be familiar territory for those who practice exclusively in the criminal arena where discovery is much more limited.  For example, the JETWG recommends that government and defense attorneys meet and confer early and often about the nature, volume, and mechanics of ESI discovery.  Additionally, practitioners are advised to be proactive throughout the process, for instance, ensuring access to an ESI production soon after it is received to reduce potential delay caused by technical issues with the production.  The protocol details the potential types of ESI available for discovery and the various methods and formats in which ESI should be produced.  Also included are definitions of common ESI terms, e.g., native file, metadata and load files, which should be appreciated by Luddites and technophiles alike, to ensure that all parties are speaking the same ESI language. 

While many of the recommendations and strategies in the protocol have been adapted from civil litigation, JETWG includes specific recommendations and strategies for situations that are unique to criminal cases.  For instance, the protocol provides guidance on the protection of sensitive ESI, such as grand jury materials, information affecting witness safety and information about confidential informants.  The protocol also specifically addresses the manner of producing ESI that has been seized from a third party or where the producing party has limited authority to search a digital device based on the scope of a search warrant.  Most significantly, the protocol limits its recommendations to the disclosure of ESI required under the Federal Rules of Criminal Procedure 16 and 26.2, Brady, Giglio, and the Jencks Act. 

While the protocol is an important first step, there are many unanswered questions about how criminal law principles apply to ESI and what the resulting best practices should be.  Recent cases have addressed whether and to what extent mobile phones can be legitimately seized under the Fourth Amendment “search incident to arrest” doctrine, when GPS devices can be lawfully used by the Government without a warrant, and whether it is reasonable to seize an entire hard drive when only certain files may be within the scope of a warrant.  See Andrew D. Goldsmith, U.S. Department of Justice National Criminal Discovery Coordinator, Trends – Or Lack Therof – In Criminal E-Discovery:  A Pragmatic Survey of Recent Case Law, Vol. 59, No. 3, United States Attorneys’ Bulletin (May 2011) at 2-15 for a detailed discussion of these cases. 

Aggressive and appropriate management of ESI is a critical component of criminal defense.  DOJ’s protocol addresses handling of ESI, but the directives will also effectively provide parties with a unique opportunity to engage with agents and prosecutors about their case, communicate critical defense themes, and potentially learn important details regarding the government’s investigation.   Today, criminal defense, particularly in complex environmental matters, requires counsel that is savvy with regard to the management and control of ESI.  Lawyers in Beveridge & Diamond’s White Collar Criminal Practice bring years of experience and technical sophistication to every matter.   

For more information about criminal e-discovery issues or Beveridge & Diamond’s White Collar Criminal Practice, contact Lily Chinn at (415) 262-4012 or Nadira Clarke at (202) 789-6069.