As of February 2012, the Department of Justice (in conjunction with the Administrative Office of the U.S. Courts and the Joint Working Group on Electronic Technology in the Criminal Justice System) has officially released a set of best practices for ESI discovery in federal criminal cases. These protocols were drafted and negotiated by JETWG over an 18 month period and will hopefully facilitate cost effective, efficient, and predictable ESI discovery. The rules will also provide a much needed framework for the e-discovery process which has, up until now, been left to individual courts and criminal lawyers. Especially in corporate and white collar investigations, the ESI that must be discovered is often overwhelming in both volume and complexity; the guidelines should help bring order to this chaos.
In constructing the rules, the Joint Working Group relied on 10 principles, of which a select few discussed here.
Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.
Given the amount of time and energy that the e-discovery community has devoted to advocating increased technical education for lawyers, it is hardly surprising to see this principle listed at number one. In the past, it was common to regard cross pollination between the legal and IT professions in a negative light. Lawyers practiced law, and IT professionals supported that practice, contributing their technical expertise as needed. However, this paradigm is changing, and now lawyers are taking on more project manager type roles in the e-discovery process that force them to have more than a passing understanding of how it actually works.
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.
As seen in the case of Da Silva Moore, agreement on the nitty gritty details of the specific e-discovery procedure(s) proposed is essential. The difference between ten thousand and ten million documents is substantial in terms of cost, time, and man power, and this difference may potentially be decided by a single poorly chosen search term or technique. Also, the importance of “on-going dialogue” cannot be emphasized enough, as this allows parties to stay on top of a constantly evolving case. After the meet and confer, Principle 6 entails notifying the court of any decisions that the parties have made about ESI discovery and of any problems they anticipate that would add to the difficulty of handling the case.
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.
Appointing a discovery coordinator takes the burden of constant communication and records keeping off the lawyers and technical personnel and allows them to focus on their specific duties. Managing an e-discovery project can be a full time job even in some single defendant cases, and can be dealt with most effectively by someone who can devote their full attention to the task. A coordinator can help to ensure that the process runs smoothly and doesn’t get hung up on completely avoidable issues, such as a lost email message.
As for the rules themselves, they mostly mirror the e-discovery methodology that applies in civil cases. However, the criminal rules go into significantly more detail; for example, the rules include 15 different categories of ESI that may be produced. It is interesting to note that while other guidelines – such as those produced in Delaware and the Eastern District of Texas – have specifically excluded phones, voicemails, and PDAs from discovery requirements, the criminal rules do include third party devices with ESI as a category. Other categories of note are documentation of tangible objects, photographs and audio recordings, and materials with special considerations (trade secrets, tax returns, etc.).
Also included in the rules is an “ESI Discovery Production Checklist,” which comprehensively details the considerations that parties should keep in mind when commencing a criminal case involving e-discovery. This checklist offers criminal lawyers a simple, single step way to make sure that they address the most pertinent issues involved in the e-discovery process. But before diving into the recommendations, keep in mind a quote from the introduction, which states, “These Recommendations are intended for cases where the volume and/or nature of the ESI produced as discovery significantly increases the complexity of the case. In simple or routine cases, the parties should provide discovery in the manner they deem most efficient in accordance with the Federal Rules of Criminal Procedure, local rules, and custom and practice within their district.”