eDiscovery: New federal protocol for criminal cases

My first impression of the practice of law back in 1961 was that, unlike lawyers practicing civil law, those in the criminal arena did not have to worry much about preparing lots of paperwork and carrying many files to court. It was a "paperless" practice so that, at the very most, lawyers in criminal practice customarily showed up in court with nothing but a thin manila folder absent any semblance of a briefcase.

Today, eDiscovery advancements have moved from the civil arena to also envelop criminal practice. Problems facing civil practitioner have also served as problems for the field of criminal law. The Joint Electronic Technology Working Group recognizes this change in its guidelines for management of post-indictment eDiscovery between the federal government and defendants charged with federal crimes for uniform treatment of electronically stored information in case investigation and trial.

Background to the Guidelines. While seeking to encourage "best practices for the efficient and cost-effective management of post-indictment" eDiscovery in federal criminal cases, the guidelines are "especially important for the representation of indigent defendants." Therefore, the guidelines note that in order to "realize those benefits and to avoid undue cost, disruption and delay, criminal practitioners must educate themselves and employ best practices for managing" eDiscovery. There is a new protocol intended to apply to disclosure of ESI under Federal Rules of Criminal Procedure 16 and 26.2 (relating to testimony of witnesses other than a defendant). These rules reflect the requirements imposed by Brady v. Maryland, 373 U.S. 83, Giglio v. United States 405 U.S. 150, and the Jencks Act.

Brady, Giglio and the Jencks Act. Brady requires that withholding of such evidence violates due process "where the evidence is material either to guilt or to punishment." Giglio stands for the proposition that the prosecution's failure to inform the jury that a witness was promised immunity from prosecution in exchange for his testimony is a failure to fulfill the duty to present all material evidence, constituting a violation of due process that requires a new trial. Under the Jencks Act (originating with Jencks v. U.S., 353 U.S. 657), the government is required to produce documents relied on by its witnesses in federal criminal trials, and failure to do so will result in a mistrial and dismissal of criminal charges against the defendant.

What the Guidelines provide. The core civil eDiscovery principles have been collected for the criminal arena, providing a general structure for ESI management that includes items such as discovery planning, document production, electronic transmission, resolution of disputes, and security. Assistance is also provided for technical aspects of implementation as well as definition of terms. Provision is made for the responsibility of lawyers to acquire an adequate understanding of eDiscovery; encouragement of a collaborative approach to production of ESI and sharing responsibility for the outcome, including in the process personnel with ESI technical expertise and experience; initial rather than later stage meet-and-confer responsibilities and continuation of dialogue throughout the case; agreement on production formats and limitation of costs, involving the court at an early stage following good faith meet-and-confer conferences; cases with multiple defendants to designate one or more defense counsel as the "discovery coordinator(s)" or appointment of a "coordinating discovery attorney" (CDA); consultation with a "supervisor" and authority being sought from such person before resorting to resolution of ESI disputes or claimed misconduct; the number of litigation team members who have access to ESI to be limited and efforts made to secure eDiscovery "against unauthorized access or disclosure."

Production checklist. From the outset, parties and counsel are urged to agree on things such as standards for production, methods of transmission, and security measures to be employed because of the sensitive nature of criminal cases. Good faith negotiations are encouraged to resolve issues and problems that may arise in the process, and a detailed eDiscovery production checklist is provided for dealing with issues concerning ESI. Such considerations include: Does the case qualify for the guidelines; is classified, trade secrets, national security, or homeland security information involved; are appropriate technical advisors available; have the parties met and conferred about eDiscovery issues and addressed the ESI format to be produced; have the agreements and disagreements of the parties been memorialized; has a system for dispute resolution been designed; is there a need for a CDA; and is there a plan for the management and return of ESI upon case conclusion? It seems as if the designers of the guidelines had mediation of the process in mind.

Not for everyone. The recommendations for the new procedure make it clear that the guidelines are not for everyone. A clear distinction is made between complex and other cases, noting that the guidelines "are not indicated for all cases." However, the provisions for CDA selection are interesting because these are attorneys contracted by the Administrative Office of U.S. Courts since they "have technological knowledge and experience, resources, and staff to effectively manage complex ESI in multiple defendant cases." They can be appointed "to provide in-depth and significant hands-on assistance" where technology and management of documents is required.

While lawyers practicing criminal law today still may manage to make court appearances with less paperwork than those navigating the civil arena, the burdens of eDiscovery have found their way to level the playing field. The new federal guidelines promoting uniform treatment in criminal proceedings have seen to that. It will be interesting to see if the guidelines provide motivation for civil practitioners to follow this role model and develop a similar set of procedural rules designed to streamline eDiscovery challenges. Given the proliferation of civil cases involving heavy sanctions, it is clear that, whether in the criminal or civil arena, eDiscovery can be a matter of "life and death."