Navigating e-discovery in criminal cases

According to the 2015 edition of "The Matthew Bender Practice Guide: California E-Discovery and Evidence," Sec. 1.40[1], text messages are an important evidentiary source due to the "more spontaneous and less cautious" use of this method of communication. The recent case of United States v. Vaughn, 14-23 (D.N.J. Nov. 10, 2015), underscored the importance of this statement.

Lest anyone think the brave new world of e-discovery with its considerable complications for the unwary and unprepared is solely relegated to the realm of civil procedure, Vaughn gives pause for serious consideration by the criminal courts bar. Notwithstanding that e-discovery authorities (such as Judge Shira A. Scheindlin and Daniel J. Capra) conclude that "the courts have mostly rejected the premise that the electronic discovery rules found in the Federal Rules of Civil Procedure are applicable in criminal cases," the Vaughn judge, citing concerns of possible bad faith and denial of due process, precluded the government from using any text messages in its case-in-chief. He also indicated that at the time of trial it might be appropriate to issue an adverse inference instruction.

Vaughn, in pro se, had sought dismissal of the indictment because he alleged the government failed to preserve certain text messages related to its investigation of defendants (Vaughn and Baron). Following conclusion of the court's evidentiary hearings and the respective arguments of counsel concerning the missing text messages, the court indicated that the sole issue to be decided by it at that point was the remedy to be imposed for the government's conduct in connection with the missing texts.

The government conceded that it had the obligation to preserve text messages, a limited number were not preserved, and those messages from certain law enforcement agencies should be suppressed. However, it argued that use of messages between the co-conspirators and from defendant Vaughn should be permitted.

Vaughn argued that the government's actions amounted to bad faith requiring dismissal of the indictment; or, in the alternative, an instruction to the jury that the government destroyed the evidence because it was favorable to the defense. The government asked that any decision regarding such a spoliation instruction be delayed to time of trial. The court agreed because it determined that the government's representations and actions in dealing with the text messages, and the various requests from Vaughn and also the judge, amounted only to simple negligence in view of the fact the government had no duty to deliver its entire file to defendants.

The court emphasized that the discovery obligations in a criminal case are different than those in civil litigation, and because of the constitutional guarantee of a fair trial present in prosecutions. In contrast to the parameters of discovery in civil cases, the court noted that under Federal Rules of Criminal Procedure Rule 16 the categories of information to which defendants are entitled in pretrial discovery are specifically set forth (plus "additional material" discoverable under statutory pronouncements and the due process clause of the Constitution). Such additional material is limited to what is discoverable under the Jencks Act and Brady v. Maryland, i.e., a prosecutor can be required to produce a verbatim statement or report made by a government witness or prospective witness until that witness has testified; and, the prosecution has an obligation to disclose all materially exculpatory and impeachment evidence.

Thus, although there is no constitutional requirement that the government produce its entire file, it must disclose all "material exculpatory and impeachment evidence," and make sure that it does not hold back any such evidence in possession of any members of the prosecution. The court discussed at great length the following five reasons why it was issuing sanctions against the government.

First, the principal government officer lacked credibility in claiming the deleted messages were of no evidentiary value; and, the FBI policy requiring preservation of all text messages between confidential witnesses and law enforcement had been ignored, either intentionally or systematically through the deleting function. Further, the prosecution had "a duty to learn of and disclose information 'known to the others acting on the government's behalf in the case.'"

Second, the court rejected the claim of the government that the quantity of the questioned messages sent and received from the text logs was "negligible," as claimed by the government.

Third, the court did not believe the government's claim of "simple misunderstanding or inadvertent error."

Fourth, the government did not make "all necessary and appropriate efforts to preserve text messages in this matter." On the other hand, it appeared to the court that the government "did in fact make every effort to retrieve the messages from Defendants' seized phones."

Fifth, and most significant to the court, was the government's "differential treatment of text messages depending on the source and use of these messages," ignoring its "obligation to govern impartially." This means that, in a criminal prosecution, the prosecution must put the requirement that justice is done above winning the case.

Therefore, the court concluded that the government would be prohibited from using any text messages in its case-in-chief, not just those "with the least interest to the prosecution," as had been urged by the government. Whether it could use the messages for other purposes would be decided during trial on an "issue-by-issue basis."

Practice tip: In e-discovery matters involving criminal cases, the primary goal is to ensure a fair trial. This means the prosecution must disclose all materially exculpatory and impeachment evidence, using an appropriate preservation policy that requires compliance by all members of the team, making it clear that securing justice takes precedence over winning the case.