Criminal Defense Series: Notice of the JETWG’s Release of ESI Protocols
In 2008, a Federal Court in United States v. Graham dismissed a criminal charge due to the government’s failure to produce its electronic discovery timely and effectively, ultimately making it impossible for the defense to provide adequate representation without undue delays. As the Court stated, “discovery could have and should have been handled differently”.
It has been almost four years since the Graham decision, but has there been substantial improvement in the production of ESI in the criminal space? From my experience, I would say no. However, in the past few months, there have been some major developments which I believe will shape and improve the process dramatically, including the release of ESI Discovery Protocols by the JETWG.
In February, the Join Electronic Technology Working Group (JETWG) released recommendations and guidelines for ESI discovery. Leveraging the input and expertise of CJA panels, the FDO, DOJ, and other liaisons, these guidelines address the overarching principles that need to be maintained in order to improve the current disconnect. Though these recommendations do not bind parties to any particular process, they have carved out a clear process.
The guidelines address the following principles, excerpted directly:
Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.
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.
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.
Principle 4: The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any formats 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.
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.
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.
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.
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.
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 seeing judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
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.
Each principle is fully illustrated in the 3 separate documents produced by the JETWG: 1) Recommendations for ESI Discovery in Federal Criminal Cases, 2) Strategies and Commentary in ESI Discovery in Federal Criminal Cases and 3) ESI Discovery Checklist. Please read the full paper at http://nlsblogdotorg.files.wordpress.com/2012/03/final-esi-protocol.pdf
In commercial matters, some of these principles have been in practice for quite some time, for example, the meet and confer (Principles 3 & 4). However, these have not been previously adopted in the criminal arena making the discovery process more burdensome, extremely costly, and against the interest of justice.
Principle 8 is especially interesting: Multi-defendant cases should designate a discovery coordinator or seek the assistance of the Coordinating Discovery Attorney. In my experience working on multi-defendant matters, this principle is critical. As much as each defense team should have its own autonomy, having a designated Discovery Coordinator allows for a much smoother process for the general discovery. The Coordinating Discovery Attorney, for example, can provide guidance on best review and processing practices, appropriate vendor services and costs, procurement of funds, etc; areas which might not be that familiar to many criminal defense attorneys.
It has been a month since these protocols were released and I have already started to observe the benefit. It is not going to be a quick process, but I am confident that these protocols are the foundation necessary for efficient and effective management, review, and disclosure of electronic discovery in federal criminal matters.
 United States v. Graham, No. 1:05-CR-45, 2008 WL 2098044, at *2-3 (S.D. Ohio May 16, 2008)
 ESI Protocol released by the JETWG, February 2012, http://nlsblogdotorg.files.wordpress.com/2012/03/final-esi-protocol.pdf