“What the Hell Is a Terabyte?” Or Conquering the Technical
Challenges of E-Discovery Competently and Ethically
• U.S. District Judge Xavier Rodriguez
• Former U.S. Magistrate Judge Ron Hedges
• Kiran Raj, Senior Counsel to the Deputy AG,
U.S. Department of Justice
• Jeff Shaffer, PwC
ESI and criminal cases:
• Array of evidence –blogs, social media, etc. can support
charges or defenses and call into question credibility and
motives of witnesses
• Digital devices record information – what an individual
was doing, whom they did it with, what the person was
thinking
• Metadata includes details such as creation date, date of
last modification, last access
• All this data potentially implicates proof of actions,
identity, motive and conspiracy
2
ESI and criminal cases:
• Cameras record faces and license plates
• GPS chips, radio-frequency identification
(RFID) chips and sensors (phones, access
badges, toll collection stations, OnStar,
passports track and record movements
3
Competence With Electronically Stored Information:
What Does It Mean In the Context of Criminal Cases and How Can
Defense Counsel Achieve It?
• ABA Model Rule of Professional Conduct
1.1
A lawyer shall provide competent
representation to a client.
Competent
representation requires the legal knowledge,
skill,
thoroughness
and
preparation
reasonably necessary for the representation.
4
Competence With Electronically Stored Information:
What Does It Mean In the Context of Criminal Cases and How Can
Defense Counsel Achieve It?
• Comment 8:
• To maintain the requisite knowledge and skill,
a lawyer should keep abreast of changes in the
law and its practice, including the benefits and
risks associated with relevant technology,
engage in continuing study and education and
comply with all continuing legal education
requirements to which the lawyer is subject.
5
Competence With Electronically Stored Information:
What Does It Mean In the Context of Criminal Cases and How Can
Defense Counsel Achieve It?
• Defense Counsel should know what constitutes ESI and
electronic locations where potentially relevant ESI can be
found.
• Defense Counsel should be capable of investigating the
potentially relevant sources of ESI in the possession, custody or
control of the Government and law enforcement.
• In addition, Defense Counsel should assess the potentially
relevant sources of ESI in the possession, custody and control of
her client.
• An attorney should understand the right questions to pose,
both to her client and the opposing party, as well as the
information provided in response to those inquiries.
6
E-Discovery impact on corporations and
corporate officials
• Preserve potentially relevant information
when a government investigation is
threatened, pending or can be reasonably
anticipated, even though no subpoena has
been issued
• Practical considerations
7
E-Discovery impact on corporations and
corporate officials
– Obstruction of justice provisions in SarbanesOxley
– Failure to preserve may influence or shape the
views of investigators and prosecutors about
culpability
– Obstruction of justice enhancements may be
applied in the sentencing
8
Rule 16
Fed. R. Crim. P. 16(a)(1)(E): Discovery and Inspection – Government's
Disclosure – Information Subject to Disclosure – Documents and
Objects.
Upon a defendant’s request, the government must permit the defendant
to inspect and to copy or photograph books, papers, documents, data,
photographs, tangible objects, buildings or places, or copies or portions
of any of these items, if the item is within the government’s possession,
custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at
trial; or
(iii) the item was obtained from or belongs to the defendant.
9
Rule 16
Fed. R. Crim. P. 16(b)(1)(A): Discovery and Inspection – Defendant's
Disclosure – Information Subject to Disclosure – Documents and
Objects.
If a defendant requests disclosure under Rule 16(a)(1)(E) and the
government complies, then the defendant must permit the government,
upon request, to inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects, buildings or places, or
copies or portions of any of these items if:
(i) the item is within the defendant's possession, custody, or control;
and
(ii) the defendant intends to use the item in the defendant's case-inchief at trial.
10
ESI IN CRIMINAL ACTIONS
POST-INDICTMENT
Government obligations comes into play:
• Criminal Rule 16(a)
• Brady
• Giglio
• Jencks Act
Defendant’s obligations set forth in Rule 16(b)
Possible remedies for failure to comply:
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ESI IN CRIMINAL ACTIONS
POST-INDICTMENT
• “order that party to permit the discovery or
inspection; specify its time, place, and manner;
and prescribe other just terms and conditions”
(Rule 16(d)(2)(A))
• “grant a continuance” (Rule 16(d)(2)(B))
• “prohibit that party from introducing the
undisclosed evidence” (Rule 16(d)(2)(C))
• “enter any other order that is just under the
circumstances” (Rule 16(d)(2)(D))
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Government’s obligation to preserve
• In a case involving the FBI’s failure to
preserve text messages, a court relying on
the civil discovery rules, issued an adverse
inference instruction that permitted the
jury to infer that the missing text messages
were relevant and favorable to the
defendants. See U.S. v. Suarez, 2010 WL
4226524 (D. N.J. 2010).
13
Form of production
• Rule 16 “is entirely silent on the issue of the
form that discovery must take; it contains
no indication that documents must be
organized or indexed.” U.S. v. Warshak, 621
F. 3d 266 (6th Cir. 2010).
14
Form of production
• But see U.S. v. O’Keefe, 537 F. Supp. 2d 14 (D. D.C.
2008)(court held that document production by the
government should adhere to Fed. R. Civ. P. 34 standards)
and U.S. v. Briggs, 2011 WL 4017886 (W.D. N.Y.
2011)(applying FRCP 34 and Fed. R. Crim. P. 16(d) and
ordering government to re-produce ESI in reasonably
useable form or forms following a data dump; government
was the party “better able to bear the burden of
organizing these records”).
15
Brady issues and ESI
• In U.S. v. Skilling, 554 F. 3d 529 (5th Cir. 2009), the
defendant argued that the government’s massive
production of documents was a data dump that violated
Brady’s obligations because it effectively suppressed
exculpatory evidence. The Fifth Circuit disagreed noting
this was not a data dump, the government’s open file
production was electronic and searchable, the
government produced a set of “hot documents”, and the
government created and provided the defendant indices
to these documents).
16
Brady issues and ESI
• See also U.S. v. Lewis, 594 F. 3d 1270 (10th Cir. 2010)
(defense not entitled to a govt created database which
constitutes work product); U.S. v. Ohle, 2011 WL 651849
(S.D. N.Y. 2011)(govt produced several gigabytes of data;
court stated that Brady “does not place any burden on the
Government to conduct a defendant’s investigation or
assist in the preparation of the defense’s case.”)
• But see U.S. v. Salyer, 271 F.R.D. 148 (E.D. Cal. 2010)(court
ordered govt to specifically identify Rule 16, Brady and
Giglio materials)
17
Email and text exchanges between cooperating
witnesses and prosecution/law enforcement
• U.S. v. W.R. Grace (D. Mont. 2009)(midway during the
cross-examination of a cooperating witness the defendant
became aware of 200 emails exchanged between the
cooperating witness and case agent; court instructed jury
that the emails showed significant bias in the relationship
between the witness and govt and animus towards the
defendant)
• U.S. v. Malone, 49 F. 3d 393 (8th Cir. 1995) (emails
between prosecutors and agents not discoverable; these
were impressions of a witness’ interview not statements
of the witness)
18
Discovery and exchange of ESI
Recommendations for Electronically Stored Information (ESI)
Discovery Production in Federal Criminal Cases, Joint Working
Group on Electronic Discovery in the Criminal Justice System
(“JETWG”) (Feb. 2012)
• Contents:
– Introduction
– Recommendations
– Strategy and Commentary on ESI Discovery in Federal
Criminal Cases
– ESI Discovery Production Checklist
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Discovery and exchange of ESI
Prosecution and defense cooperation
• For example, to avoid disputes as to the form or volume of
production
• Compare United States v. Skilling, 554 F.3d 529 (5th Cir.
2009), vacated in part and remanded in part, 130 S. Ct.
2896 (2010) (production as “data dump”) with United
States v. Rubin/Chambers, 825 F. Supp. 2d 451 (S.D.N.Y.
2011) (denying defense request that government
reproduce ESI in categorized bunches as ESI was
searchable and other steps were taken to relieve
burdensomeness)
20
Speedy Trial Issues and ESI
• U.S. v. Graham, 2008 WL 2098044 (S.D. Ohio
2008) (court dismissed indictment for Speedy
Trial Act violation where govt was slow to produce
millions of documents and other media)
• But see U.S. v. Qadri, 2010 WL 933752 (D. Hawaii
2010) (court denied motion to dismiss based on
Speedy Trial Act; any delays were attributable to
complexity – 30 computer hard drives and 3
servers)
21
Coordinating Discovery Attorney
(CDA)
United States v. Hernandez, 14 Cr. 499, 2014
WL 4510266 (S.D.N.Y. Sept. 12, 2014)
• Court denies defendants’ motion for
appointment of Coordinating Defense
Attorney (CDA)
– “There are clear and obvious ethical and legal
issues implicated * * *”
22
Coordinating Discovery Attorney
(CDA)
Any stipulation should include:
1. Defense counsel responsible for ensuring
everything received
2. Defense counsel responsible for ensuring
everything loaded or accessible
3. Defense counsel responsible for ensuring
all in form useful to clients
4. Defense counsel responsible for tagging
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Coordinating Discovery Attorney
(CDA)
5. Defense counsel responsible for reviewing
6. Defense counsel responsible for clients’
failures
7. CDA assumes no responsibilities as
attorney
8. CDA does not negotiate with government
9. CDA’s communications not privileged
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Admissibility
• Fed. R. Evid. 104: Preliminary Questions on
Admissibility
• Fed. R. Evid. 401: Test for Relevant Evidence
• Fed. R. Evid. 901: Authenticating of Identifying
Evidence
• Fed. R. Evid. 403: Excluding Relevant Evidence for
Prejudice, Confusion, Waste of Time, or Other
Reasons
• Fed. R. Evid. 701: Opinion Testimony by Lay Witnesses
• Fed. R. Evid. 702: Testimony by Expert Witnesses
25
Admissibility
• Parker v. State, No. 38, 2013, 2014 WL 621289
(Del. Sup. Ct. Feb. 5, 2014) (post on
defendant’s social media page sufficiently
authenticated through circumstantial evidence
and victim testimony)
• Smith v. State, 136 So.3d 424 (Miss. 2014)
(affirming conviction although social media
messages and email notification erroneously
admitted)
26
Admissibility
• Commonwealth v. Grace, 84 Mass. App. Ct.
1136 (Feb. 19, 2014) (rejecting challenge to
admission of text messages based on
circumstantial evidence presented at trial)
27
Admissibility
• In re Jovan A., 6 N.E.3d 760 (Ill. App. Ct.
2014) (reversing adjudication of
delinquency; court below erred in
admitting hearsay testimony on content of
craigslist.org advertisement)
• United States v. Vayner, 769 F.3d 125 (2d
Cir. 2014) (reversing conviction; social
media page erroneously admitted)
28
Admissibility
• Sublet v. State, 2015 WL 1826582 (Md. Ct. App. 2015) (first and
most obvious method for authentication “would be to ask the
purported creator if she indeed created the profile and also if
she added the posting in question”. The second approach is to
“search the computer of the person who allegedly created the
profile and posting and examine the computer's internet history
and hard drive to determine whether that computer was used
to originate the social networking profile and posting in
question.” The third of the non-exhaustive means of
authentication is to “obtain information directly from the social
networking website”, which would link together the profile and
the entry to the person, or persons, who had created them.)