January 25, 2021

Criminal Defense Series Part I: Tips for Handling E-Discovery when Representing a CJA Defendant

Representing a CJA (Criminal Justice Act) defendant[1] has always posed a unique set of challenges, but now with the explosion of electronic evidence, the task is becoming even more overwhelming.  Daunting in a civil litigation with endless resources, a CJA Attorney is often asked to take on the task without a billable staff, financial resources, or even any experience in e-discovery management.

It is not uncommon to find over four terabytes of discovery disclosed in a CJA matter. This often contains forensic images, DVDs, tiff images, loose electronic files, audio/video, and wiretap linesheets. Most of the data will even be in a format that cannot be immediately reviewed.  Not only with the data be voluminous, it will also be disorganized, mingled, and incomplete (should we expect anything less?)

Most attorneys fall back on antiquated approaches: printing the documents or creating spreadsheets/inventories of the data.  However this strategy fails because not only will the attorney be unable to adequately review and organize the mass volume, s/he will also miss relevant information. For example, the attorney might overlook files that cannot be opened without being processed or “unlocked”, files that do not print as displayed in native format, or metadata that contains crucial historical information. Unfortunately, without a comprehension of additional resources and methods available, this might seem like the only option.

So what should a CJA attorney do when s/he is assigned a case with sizable electronic discovery?

Upon assignment (but before Disclosure):

Talk with your client. Your client should have an idea of the electronic evidence available. Some of the questions that might be helpful:

  • How many computers do you or your family own or use?
  • Do you actively use any social media sites such as Facebook?
  • Do you store a lot of paper files at your office?

Contact the National Litigation Support Office of the United States Courts Office of Defender Services.

  • This office can advise you on all aspects of discovery; from initial disclosure to trial presentation. This organization has worked with CJA panels and Federal Public Defender offices throughout the nation and has obtained a plethora of experience showing what has worked and what has not.
  •  The NLSO can advise attorneys on best practices and/or recommend consultants or software that can assist attorneys with a particular case.
  • The support office can also assist attorneys in obtaining data in a format that can be managed affordably and efficiently.

Upon receipt of Discovery:

Call Consultants and Vendors & Inquire About Their Services

  • Find a vendor who has experience in handling the type of data you are working with.
  • Ask for references from other CJA attorneys
  • Inquire about their assistance  in seeking court funding
  • Ensure that your project manager or advisor is a specialist in criminal defense document management
  • Watch complete demonstrations of the product and ask if it is possible to test the product prior to contracting.

Request a vendor catalog your data and provide a detailed report with suggested review methods plus associated costs.

  • Please note that the vendor should do this at no cost. If a vendor tries to charge you for this, look elsewhere.
  • You should look for a report that provides a thorough explanation of your data with multiple options. Though it should be technically descriptive, the explanation should be drafted in manner that is understandable. After all—you are the one who will need to defend the need to the Court.
  • It does not hurt to ask more than one vendor to do this. You will then be more comfortable with your choice and the Court will be able to see pricing comparisons.

File a motion with the Court for funding for Data Processing and Review services. In your motion, describe your data, provide an explanation of what needs to be done (and why you cannot review the data without such services) and explanation of cost. This Motion should include why you want to proceed with that vendor (cost savings, expertise, forensically sound technology, etc.) Append vendor proposals so that the Court is comfortable with your research.

This due diligence will provide the resources necessary for effective representation. And even if the funding is denied (forcing the CJA attorney to use archaic processes), it might preserve the right to appeal when the judgment resulted from the inadequate ability to review exculpatory evidence. Generally though, a Court will appreciate the thorough explanation of the data sets and cost options, ultimately resulting in funding for such services.

Follow these tips and dealing with e-discovery in a CJA matter can seem less daunting. Now you can focus on the strategy for trial rather than worrying about electronic data.

[1] A Criminal Justice Act defendant is indigent and has an attorney appointed by the court. CJA attorneys are in private practice, but are given special dispensation to represent those federal criminal defendants who are not represented by United States Federal Public Defenders.

Brooke Oppenheimer

As the Federal Legal Advisor at AccessData Group LLC, Brooke Oppenheimer, Esq. directs AccessData’s public sector clients in discovering efficient and relevant ways to manage their legal review. Integral to this role is Oppenheimer’s thorough knowledge of AccessData’s litigation support software, training, and professional services. Prior to her employment with AccessData, Oppenheimer worked extensively in the management of e-discovery for government investigations and criminal proceedings on Summation’s Hosted Review platform. Oppenheimer also managed discovery and witness statements for defense teams representing high-profile Kosovar Albanians at the International Criminal Tribunal for the former Yugoslavia (ICTY). Oppenheimer is licensed in the State of New York, and is a member of the American Bar Association.

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