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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 [email protected]
Gulf Coast Technology Centerwww.gulfltc.org
Tom O’Connor [email protected]