Recently I had the pleasure of reviewing a very well-cited article by a group of attorneys from the esteemed firm of Kramer Levin Naftalis & Frankel. The article discusses the application of civil e-discovery practices in criminal courts. With growing frequency criminal and other courts involving the Department of Justice are relying on precedent from the civil courts because, as the authors quote, they have a more thoroughly developed “e-discovery jurisprudence.”
The article focuses on the United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010), which is a case that involves corruption and bribery charges. In it, the FBI fails to produce text messages which are sought by the defendant under the Federal Criminal Procedural Rule 16 (FCPR, not FRCP), aka the Jencks Act. This rule is intended to provide evidence of testimony conducted by the government for purposes of cross examination. While I will omit the details of the text messages and leave the application of the Jencks Act to criminal law practitioners, I do want to focus on how this criminal procedural rule compares with the well-publicized civil e-discovery concept of preservation.
A government agency conducting an investigation would seem to inherently meet the threshold of “reasonably anticipating litigation”. Further, the government has a duty to preserve all material exculpatory evidence, and a failure to preserve, whether or not government acted in bad faith, is a breach of defendant’s due process rights. Thus shouldn’t it be standard procedure that the government’s instructions to or communications with informants be preserved until and throughout the criminal trial? In this particular case the court noted that the cooperating witness was seen text messaging videos of his meeting with defendants, however the FBI was unable to produce the requested text messages from the wireless carrier or in-house log server and backup tapes. Adding insult to injury, the prosecution stated the text messages were manually deleted from the Blackberry devices themselves, “in part, for fear of overloading the device’s local persistent memory.” Will someone get RIM on the phone??
I’m not so naive as to claim there wasn’t other strategy in play, but a properly implemented lit hold system (and process) would have gone a long way in avoiding what ultimately resulted in an adverse inference instruction to the jury. At a minimum I would advocate that the time has come for government agencies to implement systems that properly track, distribute and maintain a record of a “litigation hold.” As E-Discovery Holds Strategies for Criminal Defense points out failure to produce Jencks material can have more severe implications than even adverse instructions, up to and including striking witness testimony from the record and even declaration of a mistrial.
Whether Suarez portends mass and swift adoption of the civil preservation obligations in criminal settings is a product of 1) continued education and recognition in the courts and 2) further refinement and instruction from the Department of Justice. David Ogden’s 2010 memorandum, “Guidance for Prosecutors Regarding Criminal Discovery” is evidence that the maturation process is underway. Let’s hope it doesn’t take additional examples such as Suarez where if it was not the determining factor, the adverse inference instruction likely contributed to the first acquittal on Federal Corruption charges in New Jersey in over a decade.
-  Norman C. Simon, Brendan M. Schulman, and Samantha V. Ettari, E-Discovery Holds Strategies for Criminal Defense, http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202487832852&slreturn=1&hbxlogin=1 (March 2010). ↩