ESI Discovery in Federal Criminal Cases

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.

Spoliation of Evidence in Cybercrimes

Florida Cybercrime  Attorney has been researching sanctions for destruction of evidence, also known as Spoliation. The Sanctions: Defendant to Pay Attorneys’ Fees or Serve Two Years Imprisonment for “Egregious” Discovery Misconduct.

The plaintiff sought sanctions arising out of the defendants’ intentional spoliation of evidence and other litigation misconduct in this intellectual property litigation. There were eight preservation issues including: use of wiping software; failure to implement litigation hold; failure to preserve an external hard drive; failure to preserve files and e-mails notwithstanding plaintiff’s demands and several court orders.

The Judge found through four years of discovery, the defendant had actual knowledge of his duty to preserve, “yet delayed and misrepresented the completeness of the ESI [Electronically Stored Information] production and deleted, destroyed and otherwise failed to preserve evidence.” The Judge then found the destruction “collectively constitute[d] the single most egregious example of spoliation [that he has] encountered in any case & in nearly fourteen years on the bench.”

The sanctions: Defendant to be imprisoned for up to two years, or until he paid the attorneys’ fees and costs estimated to be a “significant amount.”

Sources:

Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3703696 (D. Md. Sept. 9, 2010)