United States v. Hernandez, No. 14 Cr. 499(KBF), 2014 WL 4510266 (S.D.N.Y. Sept. 12, 2014)
Citing ethical implications, the District Court in this criminal case denied nine defendants’ motion to “appoint a tenth attorney to act as a Coordinating Discovery Attorney (“CDA”) on behalf of all nine defendants.” The Court concluded that “[a] vendor with an arms-length contact is clearly preferable” but also indicated that if a CDA was sought, “a stipulation or legally binding document should be entered” which makes clear the responsibilities of the CDA and of defense counsel.
In February 2012, the Joint Electronic Technology Working Group promulgated its “Recommendations for Electronically Stored Information (ESI) Discovery Production in Criminal Cases,” including that “[i]n cases involving multiple defendants, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek the appointment of a Coordinating Discovery Attorney and authorize that person to accept, on behalf of all defense counsel, the ESI discovery produced by the government.” The Recommendations did not, however, identify a list of tasks that may be delegated to a CDA or “address any legal or ethical issues that may be implicated with the appointment of CDAs.”
As noted by the Court, since 2012, an “increasing number” of courts have appointed CDAs, but none have discussed the potential ethical and legal implications of those appointments, nor has any one set of appropriate responsibilities been identified. (In the present case, for example, the moving parties proposed that the CDA would “(1) act as a repository (or ‘way-station’) for the receipt of electronic discovery; (2) possibly index or ‘tag’ such discovery (which requires some review); and (3) determine, in collaboration with defense counsel, ‘whether additional support services are necessary or whether they can be address[ed] … within the context of [the CDA’s] services.’”) Thus, the Court undertook to examine the implications of such an appointment and, for the reasons identified below, denied the motion.
Summarizing broadly, the Court first identified several “[f]undamental legal principles critical to adequate defense of a criminal charge,” including that “each defendant is entitled to the undivided loyalty of his attorney.” The Court next discussed the importance of discovery in revealing the specific details of each defendant’s story and noted that not all defendants in a particular case “necessarily share the same legal interests.”
Turning then to the appointment of a CDA, the Court acknowledged that “central management” of voluminous discovery would “seem” to make sense, but questioned how an attorney’s duty of undivided loyalty could be “squar[ed]” with the duty to manage discovery of multiple defendants. Having identified the crux of its concern, the Court dedicated the remainder of the opinion to discussing the identified tension.
The Court reasoned, for example, that if a CDA is an attorney, it is “unclear whether the CDA is ever expected to act as an attorney—and if so, on whose behalf.” “If, on the other hand,” the Court continued, “a CDA will not act as an attorney, then one wonders why a CD-‘A’—that is, an attorney—should be appointed to this position at all. Indeed, appointing an attorney to centrally manage discovery only serves to raise serious concerns.” The Court questioned (extensively), for example, who would bear responsibility for mistakes made in the course of the discovery management. Accordingly, the Court raised the possibility of instead hiring “technology vendors” whose technical capabilities could be “readily understood and relied upon,” who typically enter into a contract that ensures clarity in the roles of each party, and who, “most importantly,” “cannot be confused with a lawyer.” As the Court concluded, “[t]he vendor’s failures in the discovery process are clearly the problem of the counsel of record.”
Following the articulation of its concerns surrounding the appointment of an attorney as a CDA, the Court acknowledged that “[t]here may be” a role for such an appointee “with safeguards and an appropriate hearing.” The Court concluded, however, that:
If a CDA clearly is not acting as an attorney, then—since a CDA is an attorney—the relationship must be clearly defined and explained to each defendant (who might otherwise wonder why an attorney who is performing tasks on his or her behalf is not his or her attorney). The very need to so carefully define the role of the CDA begs the question of why parties need to hire an attorney at all. A vendor with an arms-length contract is clearly preferable. But, assuming that the parties seek a particular person, who happens to hold a juris doctor degree, to assist with coordinating the technical aspects of discovery, a stipulation or other legally binding document should be entered which makes at least the following things clear:
1. Defense counsel are fully responsible for ensuring that all discovery produced by the Government is in fact received.
2. Defense counsel are fully responsible for ensuring that all discovery is loaded onto a server or otherwise made accessible.
3. Defense counsel are fully responsible for ensuring that all discovery is received in a form useful to their clients.
4. Defense counsel are fully responsible for any tagging or indexing.
5. Defense counsel are fully responsible for reviewing and searching all discovery materials.
6. Defense counsel are fully responsible for any failure in their clients’ discovery processes.
7. The CDA will not assume any responsibilities of an attorney in her role as a CDA.
8. The CDA will not negotiate any discovery issue with the Government.
9. None of the CDA’s communications will be covered by the attorney-client privilege.
Also of note was the Court’s reasoning regarding the need for all counsel to remain able to handle electronic discovery:
Finally, the Court notes the important need to ensure that defense counsel not “lose the thread” of how to handle and manage electronic discovery. A clear benefit of managing one’s own discovery, in addition to the benefits set forth above, is that managing large ESI cases will not become an unduly specialized task. Indeed, if CDAs were routinely appointed in large cases, defense counsel would inevitably start to argue that the technology has “gotten away from them.” The interests of criminal defendants require that this not occur.