Tampa Cyber Crime Attorney just received this tip from a source. “A recent non-published opinion [for your convenience we have published it below] 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.

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“this is one of the first known cases to address spoliation of electronic discovery in the criminal context”

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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 Though the opinion is not for publication, counsel will want to consider that communications between agents and witnesses can often [sic] be in electronic form, and to remember this reality with when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.”

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Download is Here:

https://drive.google.com/file/d/1koPGBr1eYQOHzBeXXChiL3ZR0iS1SXUP/view?usp=sharing

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Spoliation Case Excerpts:

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“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).”

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“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.

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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.”

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“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.”

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.”