ESI in the Criminal Context: A Call for Clarification

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Although the Federal Rules of Civil Procedure set the stage for electronic discovery in civil cases, there is no such express regime in the criminal context. 

The absence of such a standard became evident in a recent case in the Western District of New York.  In United States v. Briggs, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011), defendants were charged with several counts related to the distribution of cocaine.  The criminal investigation leading to these charges involved court-authorized interceptions of cellular telephone communications indicating that the defendants were allegedly engaged in drug trafficking. 

In its voluntary discovery, the Government furnished defense counsel with disks containing thousands of pages of documents relating to these communications using the IPRO program routinely used by the U.S. Attorney’s Office in cases involving multiple defendants.  Defendants claimed this reported data had problems with omissions and inaccuracies resulting from the collection and management system used. The defendants also objected to the Government’s failure to provide the data in the “most useful form that is readily available” and claimed the “.tiff” files received could not be sorted or searched.  The appropriate format, according to the defendants, was either the “.pdf” or native format.  The Government, in response, refused to provide the files in these formats arguing that the cost of reproduction was prohibitive, that it had already produced the particular data requested by defendants, and that it should not bear the burden of reproduction merely because it would be more helpful or useful to the defendants. 

Examining this issue, the court began by pointing out the absence of a standard in criminal cases for the production of ESI.  While Rule 16(d)(1) of the Federal Rules of Criminal Procedure, the general authority ordering the manner of production in criminal cases, provides that, “[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief,”  it does not specify the manner in which such production should be made.  The court, therefore, turned to two other jurisdictions addressing criminal prosecutions involving extensive document production.  In United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), the United States District Court of the District of Columbia, conceded that there was no  criminal equivalent to, and, thus, applied, Federal Rule of Civil Procedure 34.  In United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the Sixth Circuit refused to require the Government to reproduce electronic materials in the format requested by the defendant because the defendants had ready access to the information and documents as they were kept in the usual course of business.

Applying these rules, the court determined that the Government was the party “better able to bear the burden of organizing these records for over twenty defendants in a manner useful to all.”  The court mandated that the Government must reproduce its disclosure in a searchable format (PDF), or in the native format.  The court based its decision on the rationale that the Government is in the better position to organize the mass of information in a manner that is searchable by the defense because: (1) the Government already compiled this electronic information from its various native forms into a common electronic database and; (2) rather than have each defendant compile the data involving that party or repeat the expense of reproducing the entire Government production, the Government should bear this burden.  In making this decision, the court made it clear that it was not adopting Rule 34 of the Federal Rules of Civil Procedure in all criminal cases, as in O’Keefe, rather it was applying it in only this case.    

Briggs is a clear example of the need for a more uniform regime for ESI in criminal cases.  According to the court, the Justice Department appears to have at least one working group considering the “best practices” for ESI in criminal cases.  Until then, each court faced with a motion to compel criminal discovery with ESI data will have to devise its own scheme for ESI discovery based on the limited rules governing the criminal context at this time.  Defendants, then, are best advised to be prepared and willing to seek the court’s involvement early on to ensure that the production of ESI is reasonable, proportionate, and manageable so as not to cripple their efforts in defending against criminal liability. 

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