Government’s “Recommendations for ESI Discovery in Federal Criminal Cases” Revealed

This month, the Joint Electronic Technology Working Group (JETWG) revealed its “Recommendations for ESI Discovery in Federal Criminal Cases,” which are intended “to promote the efficient and cost-effective post-indictment production of electronically stored information (ESI) in discovery between the Government and defendants charged in federal criminal cases, and to reduce unnecessary conflict and litigation over ESI discovery by encouraging the parties to communicate about ESI discovery issues, by creating a predictable framework for ESI discovery, and by establishing methods for resolving ESI discovery disputes without the need for court intervention.”

Members of JETWG include representatives from the Administrative Office of U.S. Courts’ (AOUSC) Office of Defender Services, the Department of Justice, Federal Defender Organizations, private attorneys who accept Criminal Justice Act appointments, and liaisons from the United States Judiciary and other AOUSC offices.

In addition to the Introduction, which outlines ten principles upon which the Recommendations build, the Recommendations include three documents: 1) the Recommendations themselves, which “provide the general framework for managing ESI;” 2) Strategies and Commentary on ESI Discovery in Federal Criminal Cases, which “provide technical and more particularized guidance for implementing the recommendations;” and 3) a one-page ESI Discovery Checklist (collectively, “Recommendations”).  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” and “are not intended for use in every case.”

The principles upon which the Recommendations build are as follows:

Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery. (See #4 of the Recommendations.)

Principle 2: In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI. (See #4 of the Recommendations.)

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. (See #5 of the Recommendations and Strategies.)

Principle 4: The parties should discuss what formats of production are possible and appropriate, and what formats can be generated.  Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format. (See #6 of the Recommendations and Strategies.)

Principle 5: When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production. (See #6 of the Recommendations and Strategies.)

Principle 6: Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case. (See #5(s) of the Strategies.)

Principle 7: The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs.  The producing party should provide a general description and maintain a record of what was transmitted. (See #7 of the Recommendations and Strategies.)

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. (See #8 of the Recommendations and Strategies.)

Principle 9: The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI. (See #9 of the Recommendations.)

Principle 10: All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure. (See #10 of the Recommendations.)

The Recommendations, Strategies, and Checklist set forth a collaborative approach to ESI discovery involving mutual and interdependent responsibilities.  The goal is to benefit all parties by making ESI discovery more efficient, secure, and less costly.

The Recommendations, while developed specifically for use in federal criminal cases, are largely applicable in most criminal cases and may provide useful guidance for criminal law attorneys who have previously navigated the difficulties of electronic discovery without assistance.  The drafters are careful to point out, however, that no new rights or obligations are created by the Recommendations, and that they are instead intended to make more efficient and cost-effective the production of electronically stored information—an increasing concern in today’s technology-driven world and one that has been addressed primarily in the civil context, until now.

For a full copy of the Recommendations for ESI Discovery in Federal Criminal Cases, click here.

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