ELECTRONIC DISCOVERY IN CRIMINAL CASESELECTRONIC DISCOVERY IN CRIMINAL CASES

Office of the Federal Public DefenderCJA Panel TrainingJackson MSNov. 13, 2009

Office of the Federal Public DefenderCJA Panel TrainingJackson MSNov. 13, 2009

AGENDAAGENDA

BackgroundGeneral DiscussionSpecific Case Example

BackgroundGeneral DiscussionSpecific Case Example

GOVERNMENT FOCUS GOVERNMENT FOCUS 

Corporate crimes Securities fraud Bank fraud Wire fraud Racketeering Money laundering

Prosecution of these cases can closely resemble the characteristics of a complex civil case.

DISCOVERY DISCOVERY

• Millions of pages of ESI from standard sources such as computers and PDA’s • Hundreds of hours of wiretaps, body wires and surveillance video• •BUT• The Brady rule (Brady v. Maryland, 373 U.S. 83 (1963),) requires that exculpatory evidence be provided to the defense• The Jencks Act requires production of verbatim transcripts and other notes or documents related to testimony by government agents, employees or witnesses

• AND• The request for production must be made by the defendant • Required only AFTER the witnesses have testified• Not generally available in pre-trial hearings.

• Millions of pages of ESI from standard sources such as computers and PDA’s • Hundreds of hours of wiretaps, body wires and surveillance video• •BUT• The Brady rule (Brady v. Maryland, 373 U.S. 83 (1963),) requires that exculpatory evidence be provided to the defense• The Jencks Act requires production of verbatim transcripts and other notes or documents related to testimony by government agents, employees or witnesses

• AND• The request for production must be made by the defendant • Required only AFTER the witnesses have testified• Not generally available in pre-trial hearings.

THE RESULT?

DOCUMENT EXCHANGE BETWEEN THE PARTIES IN CRIMINAL CASES IS NOT THE RESULT OF THE NEGOTIATION THAT EXISTS IN CIVIL CASES.

NO LITIGATION HOLD LETTERSNO MEET AND CONFER, NO MOTIONS OVER DELIVERY FORMAT

A WARRANT IS SERVED WITHOUT NOTICEAN AGENCY SEIZES COMPUTERSPROCESSES THE ESIPROVIDES DEFENSE COUNSEL A COPY OF WHAT

THEYSEIZED IN A FIXED FORMAT, TYPICALLY ENCASE OR

FTK.

THE RESULT?

DOCUMENT EXCHANGE BETWEEN THE PARTIES IN CRIMINAL CASES IS NOT THE RESULT OF THE NEGOTIATION THAT EXISTS IN CIVIL CASES.

NO LITIGATION HOLD LETTERSNO MEET AND CONFER, NO MOTIONS OVER DELIVERY FORMAT

A WARRANT IS SERVED WITHOUT NOTICEAN AGENCY SEIZES COMPUTERSPROCESSES THE ESIPROVIDES DEFENSE COUNSEL A COPY OF WHAT

THEYSEIZED IN A FIXED FORMAT, TYPICALLY ENCASE OR

FTK.

DISCOVERY DISCOVERY

• SO WHAT DOES THIS MEAN FOR THE DEFENSE ATTORNEYS IN THESE CASES?

CRIMINAL CASES ARE “ON THE CLOCK”, WITH ISSUES OF SPEEDY TRIAL AND DEFENDANTS WHO ARE OFTEN IN CUSTODY AND WANT TO GET TO TRIAL AS SOON AS

POSSIBLE.

ATTORNEYS ARE NOT ALWAYS AS TECH SAVVY AS THEIR CIVIL COUNTERPARTS.

DOCUMENT REVIEW IS DIFFICULT WITH IN CUSTODY DEFENDANTS WHO DO NOT HAVE ACCESS TO COMPUTERS

COLLABORATION WITH CO-COUNSEL IS DIFFICULT GIVEN A SYSTEM THAT REWARDS DEFENDANTS WHO COOPERATE WITH THE GOVERNMENT

TECHNOLOGY PURCHASES ARE DIFFICULT BECAUSE THE JUDGE MUST APPROVE ALL EXPENDITURES. (MORE THAN 80% OF CRIMINAL DEFENDANTS IN FEDERAL COURT APPEAR WITH COURT APPOINTED COUNSEL BECAUSE THEY ARE INDIGENT)

• SO WHAT DOES THIS MEAN FOR THE DEFENSE ATTORNEYS IN THESE CASES?

CRIMINAL CASES ARE “ON THE CLOCK”, WITH ISSUES OF SPEEDY TRIAL AND DEFENDANTS WHO ARE OFTEN IN CUSTODY AND WANT TO GET TO TRIAL AS SOON AS

POSSIBLE.

ATTORNEYS ARE NOT ALWAYS AS TECH SAVVY AS THEIR CIVIL COUNTERPARTS.

DOCUMENT REVIEW IS DIFFICULT WITH IN CUSTODY DEFENDANTS WHO DO NOT HAVE ACCESS TO COMPUTERS

COLLABORATION WITH CO-COUNSEL IS DIFFICULT GIVEN A SYSTEM THAT REWARDS DEFENDANTS WHO COOPERATE WITH THE GOVERNMENT

TECHNOLOGY PURCHASES ARE DIFFICULT BECAUSE THE JUDGE MUST APPROVE ALL EXPENDITURES. (MORE THAN 80% OF CRIMINAL DEFENDANTS IN FEDERAL COURT APPEAR WITH COURT APPOINTED COUNSEL BECAUSE THEY ARE INDIGENT)

RUSS AOKI COMMENTS RUSS AOKI COMMENTS

“Unlike a complex civil case, criminal defense lawyers tend to be solo practitioners or from small law firms. The majority of criminal defense attorneys have few staff, if any and they must balance numerous cases that require far more frequent court appearances then in the civil justice system. To further increase the pressures on them, an immediate trial is mandated by the constitutional right to a speedy trial. A client who is unwilling to waive his right to a speedy trial requires the criminal defense attorney to use tools to review and organize discovery in a quick and effective manner.”

“Unlike a complex civil case, criminal defense lawyers tend to be solo practitioners or from small law firms. The majority of criminal defense attorneys have few staff, if any and they must balance numerous cases that require far more frequent court appearances then in the civil justice system. To further increase the pressures on them, an immediate trial is mandated by the constitutional right to a speedy trial. A client who is unwilling to waive his right to a speedy trial requires the criminal defense attorney to use tools to review and organize discovery in a quick and effective manner.”

SUMMARYSUMMARY

INCORPORATION OF THE FRCP PROVISIONS REGARDING E-DISCOVERY BY CRIMINAL CASE JUDGES

JUDGE FASCIOLA IN UNITED STATES V. O’KEEFE, 537 F. SUPP. 2D 14, (D.D.C. 2008)

STATE V DINGMAN, NO. 34719-9-II CONSOLIDATED WITH NO. 35949-9-II, 2009 WASH. APP. LEXIS 550 (WASH. APP. MAR. 10, 2009)

“FIXED FORMAT DELIVERY SYSTEM BY PROSECUTORS VIOLATES THE STATES OBLIGATION TO PROVIDE THE DEFENSE “MEANINGFUL ACCESS” TO COPIES OF A HARD DRIVE.”

INCORPORATION OF THE FRCP PROVISIONS REGARDING E-DISCOVERY BY CRIMINAL CASE JUDGES

JUDGE FASCIOLA IN UNITED STATES V. O’KEEFE, 537 F. SUPP. 2D 14, (D.D.C. 2008)

STATE V DINGMAN, NO. 34719-9-II CONSOLIDATED WITH NO. 35949-9-II, 2009 WASH. APP. LEXIS 550 (WASH. APP. MAR. 10, 2009)

“FIXED FORMAT DELIVERY SYSTEM BY PROSECUTORS VIOLATES THE STATES OBLIGATION TO PROVIDE THE DEFENSE “MEANINGFUL ACCESS” TO COPIES OF A HARD DRIVE.”

FUTURE?FUTURE?

TWO TIPSTWO TIPS

RUSS “When I am appointed by the Court to be the Coordinating Attorney on complex racketeering and fraud cases, my role is to coordinate the use of technology to support the defense teams and look for cost sharing opportunities. I start each case by asking: “What do you want to do with the technology?”

KNOW THE EDRM

EDRMEDRM

HELLS ANGELS CASE STUDY

HELLS ANGELS CASE STUDY

IPro Partner ConferencePhoenix May1-2 , 2008

BACKGROUNDBACKGROUND 2003 - Znetix case 2005 - Tech Working Group 2006 - Bandidos case 2007- Hells Angels case

2003 - Znetix case 2005 - Tech Working Group 2006 - Bandidos case 2007- Hells Angels case

THE PLAYERSTHE PLAYERS

COURT Trial Judge Magistrate Judge IT Staff

DEFENSE U.S. ATTORNEY Defense attorneys Trial AttorneysCapital charge attorneys Consulting Attorneys Coordinating attorney Forensic Experts Technology Consultant Technology Staff Technology Staff

COURT Trial Judge Magistrate Judge IT Staff

DEFENSE U.S. ATTORNEY Defense attorneys Trial AttorneysCapital charge attorneys Consulting Attorneys Coordinating attorney Forensic Experts Technology Consultant Technology Staff Technology Staff

THE PROBLEMTHE PROBLEM

Multiple defendantsMost in custodySHU

Multiple attorneysCJA PanelLimited budgetNot tech savvy

Multiple defendantsMost in custodySHU

Multiple attorneysCJA PanelLimited budgetNot tech savvy

THE PROBLEMTHE PROBLEM

• ISSUES• Volume of discovery• Complexity of

discovery• E-Discovery• Audio• Video• Photographs• Physical evidence• Numbering

THE CHALLENGESTHE CHALLENGES

DOCUMENT SHARINGScan docs and share costs with USAShare with each other

Multiple disks Web program

Share with courtTRIAL

Trial PresentationHostingNumbering Issues

DOCUMENT SHARINGScan docs and share costs with USAShare with each other

Multiple disks Web program

Share with courtTRIAL

Trial PresentationHostingNumbering Issues

TIMELINE TIMELINE

TRIAL BEGINS

CASE

BEGINS

blindsided

new issues

buried in paper

lost motion

the great unknown

SOLUTIONSOLUTION

Scan with Ipro service bureauSeparate productions to each sideIpro viewer for review

IPublish used by defense team for internal group distribution

RedactionCopyingDistribution

IPro database as “Control” group

Scan with Ipro service bureauSeparate productions to each sideIpro viewer for review

IPublish used by defense team for internal group distribution

RedactionCopyingDistribution

IPro database as “Control” group

OUTSOURCEOUTSOURCE

Service BureausScanNumberBlowback IT ConsultingHostingTrial PresentationsTraining

Service BureausScanNumberBlowback IT ConsultingHostingTrial PresentationsTraining

Thank You For Listening! Thank You For Listening!

Gulf Coast Technology Centerwww.gulfltc.org

Tom O’Connor toconnor@gulfltc.org

Gulf Coast Technology Centerwww.gulfltc.org

Tom O’Connor toconnor@gulfltc.org