At long last, a definitive set of rules has been issued to regulate the use of eDiscovery in federal criminal legal matters. These rules, dubbed “Recommendations for ESI Discovery Production in Federal Criminal Cases,” were developed by the Joint Working Group on Electronic Technology in the Criminal Justice System (the Working Group) and should greatly aid criminal attorneys, who in the past had to grapple with the problem of eDiscovery without sufficient guidelines.

The ESI Criminal Recommendations are guided by 10 principles, the first of which states that lawyers have a responsibility to adequately understand electronic discovery. These principles lay out a methodology for eDiscovery in criminal matters that mirrors eDiscovery in civil matters: (1) attorneys have a duty to meet and confer at the outset of the criminal matter to assess the nature and volume of any ESI, and then notify the court of an agreed upon eDiscovery plan; (2) the parties should also agree on the format of production of any ESI discovery; and (3) in multi-defendant cases, one or more counsel should be appointed to act as the ESI Discovery Coordinator.

The ESI Criminal Recommendations go on to categorize the type of data subject to eDiscovery in criminal matters. The 15 categories include 

  • Investigative materials (such as investigative reports, surveillance records, criminal histories, etc.)
  • Witness statements
  • Documentation of tangible objects (records of seized items or forensic samples)
  • Photographs and/or video or audio recordings
  • Title III wire tap information
  • Court records (i.e. affidavits, applications, and related documentation for search and arrest warrants)
  • Immunity agreements, plea agreements and similar materials
  • Related materials, such as state or local investigative materials, parallel proceeding materials

Finally, the ESI Criminal Recommendations provide an “ESI Discovery Production Checklist.” The checklist, which succinctly summarizes the requirements of the ESI Criminal Recommendations, requires that the parties identify whether the volume or nature of ESI significantly increases the complexity of the case, whether the matter involves trade secrets or classified information and confirms that the parties have met and conferred regarding eDiscovery.

The checklist also identifies the categories of data subject to eDiscovery and requires the parties to reach agreement on a format for producing any such documents. Finally, the checklist addresses the logistical aspects of producing and reviewing ESI, including the software/hardware used, how to allow an incarcerated inmate access to the ESI, and the specific schedule for producing and reviewing the data.

The Working Group was formed specifically to address the use of electronic data in criminal justice matters and has been working to develop these eDiscovery guidelines since 1999. The Working Group’s mission statement is: “To advance the fair administration of justice in the exchange and use of electronic data in a cooperative and cost-effective manner for all parties when required by the rules, when consistent with local custom and practice (compatible with privilege), or mandated by court order.”

To draft the ESI Criminal Recommendations, the Working Group conducted interviews with federal judges, the Criminal Chiefs of all 94 U.S. Attorney offices, CJA Panel attorneys, and attorneys working in Federal Defender’s Offices.

The E-Discovery and Data Management Group at Ballard Spahr LLP has reviewed the ESI Criminal Recommendations in depth, and is prepared to assist clients with implementing these recommendations in federal criminal matters. For more information about the protocol or have questions, please contact Philip N. Yannella at 215.864.8180 or at yannellap@ballardspahr.com. For information about our White Collar/Investigations practice, please contact Beth Moskow-Schnoll at 215.861.7360 or moskowb@ballardspahr.com. 


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