eDiscovery is not just for civil litigation—and it hasn’t been for some time. ESI is increasingly making an impact in criminal cases, where emails, social media posts, and text messages have become common sources of evidence, whether in homicide investigations or, more typically, white collar criminal prosecutions such as insider trading and securities fraud. And the sources of relevant ESI are growing every day, leading to a deluge of new evidence in both criminal and civil cases. The “Internet of Things” (think your Amazon Alexa and Fitbit Smartwatch) is generating massive amounts of data that’s being used to investigate murders and expose arsonists, while the use of cell site data has become increasingly frequent—and controversial—in courts today.
But the procedural rules applicable to eDiscovery in criminal cases aren’t always sufficient, according to many criminal defense attorneys. Thus, in March of 2016, the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers contacted U.S. District Judge Donald W. Molloy, Chair of the Advisory Committee on Criminal Rules, seeking an amendment that would “address a growing problem in the defense of complex federal criminal cases nationwide.”
There is, a subsequent report by the Advisory Committee explained, significant variation between how discovery issues are treated between district courts. And while a model ESI Protocol has been issued by the Department of Justice, not all prosecutors and judges are familiar with the protocol, nor the potential implications of disclosure. Further, according to the NACDL and NYCDL, massive document dumps have become a perennial feature of many prosecutions:
It is now routine in many jurisdictions for defense counsel to receive enormous amounts of information at the outset of the discovery process, with relatively little guidance as to what might be relevant to the prosecution or defense of the charges contained in the indictment. In the 21st Century, defense counsel are often handed a computer hard drive at the first appearance in court, and told that it contains the government's first production of discovery, consisting of millions of pages of documentation and thousands of emails culled from the server of a client's employer. Thousands more pages of documentation and emails typically follow that first production, and, occasionally, more gigabytes of documentation will be dropped into defense counsel's laps on the eve of trial.
Given the nature of criminal prosecutions, “defense counsel is left with little guidance as to the specific facts the government intends to prove or the documents the government intends to rely on at trial,” making it particularly burdensome for attorneys to identify ESI that will be critical to the defense.
In an early “mini-conference” resulting from the NACDL and NYCDL’s letter, there emerged a consensus that more guidance was needed. A rule that was “something simple, that puts the principal responsibility on the lawyers, and encourages the use [of] the ESI Protocol…” The rule would need to not limit the type of cases to which the electronic discovery procedures applied, nor to set rigid standards for the manner or timing of disclosure. Based on these consultations, plus a review of local rules and orders, the Committee came up with the following proposed Rule 16.1:
Rule 16.1. Pretrial Discovery Conference and Modification
(a) Discovery Conference. No later than 14 days after the arraignment the attorneys for the government and the defendant must confer, and try to agree on a timetable and procedures for pretrial disclosure under Rule 16.
(b) Modification of Discovery. After the discovery conference, one or both parties may ask the court to determine or modify the timing, manner, or other aspects of disclosure to facilitate preparation for trial
One of the most noticeable characteristics of the proposed rule is its flexibility. The rule is, for example, significantly less detailed and demanding than the rule proposed by the NACDL and NYCDL. It creates far fewer obligations than its civil procedure counterparts, Rules 16 and 26.
The Committee Notes point to the great leeway allowed by the rule, which may be satisfied by “a brief informal conversation to settle the timing and procedures for discovery” in simple cases, to conferences demanding “more effort” in cases of greater “complexity and technological challenge.” While the rule would apply to all pretrial disclosures, it is “particularly important in cases involving electronically stored information (ESI) or other voluminous or complex discovery,” the Committee Notes explain.
Further, where 14 days may be insufficient to determine the total scope of discovery and pretrial disclosures that will be required, the proposed rule requires no more than an initial meeting. (Local rules and standing orders, however, would not be displaced under the proposed rule—their requirements would continue to “supplement” Rule 16.1’s demands.)
Finally, the proposed rule does not set forth specific requirements for how or when ESI should be disclosed. Indeed, the rule does not even reference the DOJ’s ESI Protocol which earlier meetings sought to promote for its time-saving and cost-effective impacts. Instead, the Committee Notes point attorneys to the ESI Protocol and urge counsel to “be familiar with best practices.”
Does the rule go far enough? Is more needed to address issues of electronic discovery in criminal cases? Less?
If you’ve got an opinion, now is your opportunity to make them heard. The Judicial Conference Committee on Rules of Practice and Procedure is accepting comments on the proposed amendments until February 15th. So far, only four individuals have weighed in.