Electronic Discovery in Criminal Cases – Principles


Electronic Discovery in a Criminal Case 
Federal Criminal Defense Attorney just received an excellent checklist and  list of principles to be applied in electronic discovery in criminal cases. Thanks to our Federal defense lawyer for this excellent outline. Below the principles are a quick ESI checklist. “Today, most information is created and stored electronically. The advent of electronically stored information (ESI) presents an opportunity for greater efficiency and cost savings for the entire criminal justice system . . . To realize those benefits and to avoid undue cost, disruption and delay, criminal practitioners must educate themselves and employ best practices for managing ESI discovery.” Excerpt from Introduction to Recommendations for ESI Discovery in Federal Criminal Cases 
Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.
Principle 2: In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.
Principle 3: At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.
Principle 4: The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.
Principle 5:When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.
Principle 6: Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.
Principle 7: The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.
Principle 8: In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.
Principle 9: The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
Principle 10: All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.
Special Thanks to the Federal Defender’s Office and The Joint Electronic Technology Working Group (JETWG) that was created to address best practices for the efficient and cost-effective management of post-indictment ESI discovery between the Government and defendants charged in federal criminal cases.

ESI Discovery Checklist. A one-page Checklist for addressing ESI production issues.

ESI Discovery Production Checklist

Is this a case where the volume or nature of ESI significantly increases the case’s complexity?

Does this case involve classified information?

Does this case involve trade secrets, or national security or homeland security information?

Do the parties have appropriate technical advisors to assist?

Have the parties met and conferred about ESI issues?

Have the parties addressed the format of ESI being produced? Categories may include:

  • Investigative reports and materials
  • Witness statements
  • Tangible objects
  • Third party ESI digital devices (computers, phones, etc.)
  • Photos, video and audio recordings
  • Third party records
  • Title III wire tap information
  • Court records
  • Tests and examinations
  • Experts
  • Immunity and plea agreements
  • Discovery materials with special production considerations
  • Related matters
  • Discovery materials available for inspection but not produced digitally
  • Other information

Have the parties addressed ESI issues involving:

  • Table of contents?
  • Production of paper records as either paper or ESI?
  • Proprietary or legacy data?
  • Attorney-client, work product, or other privilege issues?
  • Sensitive confidential, personal, grand jury, classified, tax return, trade secret, or similar information?
  • Whether email transmission is inappropriate for any categories of ESI discovery?
  • Incarcerated defendant’s access to discovery materials?
  • ESI discovery volume for receiving party’s planning purposes?
  • Parties’ software or hardware limitations?
  • Production of ESI from 3rd party digital devices?
  • Forensic images of ESI digital devices?
  • Metadata in 3rd party ESI?
  • Redactions?
  • Reasonable schedule for producing party?
  • Reasonable schedule for receiving party to give notice of issues?
  • Appropriate security measures during transmission of ESI discovery, e.g., encryption?
  • Adequate security measures to protect sensitive ESI against unauthorized access or disclosure?
  • Need for protective orders, clawback agreements, or similar orders or agreements?
  • Collaboration on sharing costs or tasks?
  • Need for receiving party’s access to original ESI?

Preserving a record of discovery produced?
Have the parties memorialized their agreements and disagreements?
Do the parties have a system for resolving disputes informally?
Is there a need for a designated discovery coordinator for multiple defendants?
Do the parties have a plan for managing/returning ESI at the conclusion of the case?

Electronic Discovery in a Criminal Case? Call Casey at 813-222-2220 .

Destruction of Evidence | Jury Instruction | Criminal Case | Rare Ruling

Destruction Jury Instruction
Tampa Cyber Crime Attorney just received this tip from a source. “A recent non-published opinion [Florida Criminal Defense Cyber Crime Attorney Lawyer for your convenience we have published it here ] from the District of New Jersey (United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010)) will be of interest for those who are following issues involving electronic discovery in criminal cases. In this case, the court imposed an adverse jury instruction against the government when it failed to preserve text messages that were sent between FBI agents and a cooperating witness. The instruction allowed the jury to infer (though did not require) that the deleted messages were favorable to the defendant. The issue of spoliation of evidence is frequently litigated in civil electronic discovery cases, but this is one of the first known cases to address spoliation of electronic discovery in the criminal context. Though the opinion is not for publication, counsel will want to consider that communications between agents and witnesses can often [sic] be in electronic form, and to remember this reality with when they or the defense team communicates with their own witnesses. It is hard to say what affect the jury instruction had in this instance, but it is worth mentioning that Mr. Suarez was ultimately acquitted.”
Case Excerpts:
“The key considerations for determining the appropriate spoliation sanction (e.g., dismissal, suppression, fines, or an adverse inference instruction) are:
(1) The degree of fault of the party who altered or destroyed the evidence;
(2) The degree of prejudice suffered by the opposing party; and
(3) Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.
Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir.1994).”
“The Court finds the adverse inference instruction appropriate because:
(1) The text messages were within the Government’s control;
(2) The text messages were intentionally deleted by the agents, and the U.S. Attorneys’ Office failed to take steps to preserve them;
(3) The text messages that were deleted or not preserved were relevant to claims or defenses; and
(4) It was reasonably foreseeable by the Government that in the context of this investigation and in light of the actions of the cooperating witness the text messages would later have been discoverable.
These findings by the Court fall squarely within the four elements set forth in Mosaid Technologies Inc. v. Samsung Electronics Co., 348 F.Supp.2d 332 (D.N.J.2004). Under Mosaid, the Court may only give an adverse inference instruction based on spoliation if the following elements are satisfied:
(1) The evidence in question must be within the party’s control;
(2) It must appear that there has been actual suppression or withholding of the evidence;
(3) The evidence destroyed or withheld was relevant to claims or defenses; and
(4) It was reasonably foreseeable that the evidence would later be discoverable.
348 F.Supp.2d at 336.”
“Thus, given the F.B.I.’s analogous preservation duty under Vella and Ammar and the failure of the Government to preserve relevant data in the midst of an ongoing investigation specifically aimed at prosecution, and thus where litigation was reasonably anticipated, the Government had a duty to preserve the Jencks material contained in the text messages.”
“At the close of evidence, the Court will issue the following charge to the jury:

During the course of this trial you have heard evidence by way of stipulation and testimony that during the Government’s investigation of Defendants, the cooperating witness, Solomon Dwek, exchanged numerous text messages with F.B.I. agents supervising the investigation. The Government was obligated to preserve all of these text messages, but they were either deleted by the agents themselves or not preserved by the Government. Specifically, although some text messages were in fact preserved, the Government failed to preserve other text messages, which pertained to Agent Russ and Agent McCarthy, from two key time periods: March 1 through March 16, 2009 and the entire month of July 2009. You may infer from the Government’s failure to preserve these messages, or the fact that they were deleted by agents, that the missing text messages were relevant to this case and that they were favorable to both Defendant Suarez and Defendant Tabbachino. You are not required to make this inference, however, and you must consider any rebuttal evidence that has been offered by the Government with regard to this issue. Whether you ultimately choose to make the inference is your decision as the finder of fact.”


Destruction of Evidence | Jury Instruction | Spoliation

eDiscovery, Cybercrime, and Punishment

43 nations have signed on to the Convention on Cybercrime drafted by the Council of Europe with considerable input from the United States. The cost of combating cyber crime committed overseas may now be passed on to American businesses. Under the new treaty, participating countries are given sweeping access to information in United States for cybercrimes that may have been committed overseas.

For example, France has strict laws addressing the sale of Nazi memorabilia. Sale of those items on eBay may not necessarily violate United States laws. However, French authorities may seek information from buyers and sellers in the United States regarding sales that are otherwise legal in the U.S. . Article 12 of the treaty may make businesses liable for “lack of supervision or control” of employees to may have committed criminal offense(s) covered by the convention. Businesses need to watch employee activity that, while legal in the United States, may violate the laws of a participating signer of the treaty.

The record retention requirements in the treaty may require business to address the electronic discovery (eDiscovery) and computer forensics requirements that may be mandated by this new law. The costs of the Treaty will be borne by the private sector.

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