JETWG Recommendations: Cooperation in E-Discovery

Description of the JETWG Recommendations
The JETWG Recommendations are merely that—recommendations. They are guidelines, not coercive authority. However, representatives from the administration arm of the courts, the DOJ, defense attorneys, and the judiciary all had a role in creating them. As a result, counsel seeking to deviate from them should expect to explain to a presiding judge why they should not apply.

Each of the four documents serves a purpose. The introduction explains the 10 principles on which the recommendations are based. The recommendations themselves consist of 10 recommendations, which do not track the 10 principles point-for-point but instead set forth the purpose and scope of the JETWG Recommendations. They address seven substantive areas of e-discovery. The strategies and commentary document offers more particularized guidance for the individual recommendations. Lastly, the checklist is both a summary of the entire work and a tool for discussing ESI issues with parties and the court.

The JETWG Recommendations are designed to make e-discovery more cost-effective and less burdensome by imposing basic principles learned in civil practice over the years: namely, ESI education and cooperation as set forth in the Sedona Principles. But the JETWG has given considerable thought as to how these principles work in the criminal context and tailored them accordingly. Also, the JETWG Recommendations emphasize an additional concept not often raised in the civil context: security of ESI and methods to restrict access to produced ESI only to those who need it.

ESI Education
Principle One of the JETWG Recommendations states that “[l]awyers have a responsibility to have an adequate understanding of electronic discovery” and Principle Two concludes that parties to a case “should include individuals with sufficient technical knowledge and experience” when “planning, producing, and resolving disputes about ESI discovery.” These notions are repeated in the recommendations themselves. This is a new level of competence for criminal lawyers, raising the bar for criminal practitioners dealing with e-discovery. At a minimum, each attorney must know enough about ESI to know when he or she needs assistance from an e-discovery lawyer or a technical expert.

The JETWG Recommendations suggest that parties to a multiple-defendant matter should consider designating a discovery coordinator. The coordinator should be someone with the requisite skill knowledge and resources to act as a primary point of contact with the government regarding ESI issues. The hope is that this conduit will lead to uniformity, less complex productions, and fewer miscommunications. In CJA matters, the JETWG Recommendations suggest that parties seek judicial appointment of a coordinating discovery attorney contracted by the AOUSC.

Cooperation
A significant section of the JETWG Recommendations is devoted to providing a substantive outline for parties to meet and confer on ESI issues. The included ESI checklist is very detailed and may act as a form agenda for such meetings. Items to be discussed at the meeting include technical issues such as the format of productions, how to handle proprietary or legacy data, forensic images, processing of metadata, and ESI security. Other suggested topics include privilege and confidentiality issues, naming conventions, identification of seized devices, and any warrant limitations on those devices, accessibility for incarcerated defendants, and a reasonable production schedule. Any agreement regarding these issues should be put in writing.

A new concept included in the JETWG Recommendations is the exchange of a discovery table of contents. This document is meant to be a “general, high-level guide to the categories of ESI discovery” that may be produced. It is unclear exactly what the JETWG had in mind here and what the table of contents should do. Perhaps it is an endorsement of the production in United States v. Skilling, 554 F. 3d 529, 577 (5th Cir. 2009), where the government met their discovery obligations when they included an index and a list of “hot documents” along with a multi-million-page production.

The JETWG Recommendations provide that parties should seek informal resolution of all ESI issues and involve individuals with sufficient ESI knowledge in the negotiations. They also provide that the government should implement procedures requiring line attorneys to consult with a supervisor before filing a motion seeking resolution of an ESI dispute and requiring similar approval before alleging misconduct, abuse, or neglect on a discovery matter.

Production
Another significant portion of the JETWG Recommendations addresses the technical format of production. Under the JETWG Recommendations, the production format should be designed to maintain the integrity of the ESI, be reasonably usable, and, where possible, limit cost. Despite the technical nature of ESI production, lawyers should strive to understand the issues surrounding the format. This is very important because the technical format of production defines how much of the original data will be produced and how it can be viewed. Lawyers should ensure that the production format does not include hidden pieces of files, such as comment fields and metadata, without properly reviewing them. If you do not understand the format, you cannot know what you are producing.

ESI productions should be in an industry-standard format, and the producing party should not bear any additional processing burden beyond what it would do for its own case preparation. But the JETWG Recommendations are clear that the benefit of any processing should extend to the receiving party as well as to the producing party. If a party wants a production in a different format, cost shifting may be appropriate. ESI should not be produced as printed paper.

The JETWG Recommendations allow for paper documents to be scanned and produced in standard electronic searchable formats or in print format. Forensic copies of devices should also be produced in industry-standard formats. The producing party should retain both a copy of the ESI in its original native format (or in the format it was received from a third party) and in the processed format produced. Parties, especially the government, are exempt from complying with the processing and production requirements as to materials generated in the course of the investigation such as investigative reports and witness interviews.

Transmission and Security
The JETWG Recommendations include detailed requirements on transmission and document-security requirements. The production media itself should be appropriately sized and, if needed, the costs of hard drives should be borne by the receiving party. All production media should be clearly labeled and include a descriptive cover letter. Transmissions should be encrypted where appropriate. The JETWG Recommendations recognize that data security is a high concern in criminal matters and that ESI is particularly prone to inadvertent disclosure because it is voluminous and easily copied. At the meet-and-confer, parties should discuss ways to limit dissemination to only those that need and are approved for access. Finally, the parties should discuss ways to remove, destroy, or return ESI discovery materials at the conclusion of the matter.

What Works
The JETWG Recommendations start with—and are based upon—the assumption that cooperation leads to efficiency and lower costs. This may seem obvious but is a concept that has eluded many civil lawyers given the adversarial nature of litigation. But cooperation in criminal matters may reap more benefits than in the civil context, as discovery is often truncated and rapid, and defendants often have only limited resources. The authors were correct to rely on cooperation when drafting the JETWG Recommendations, and the work they did to create the checklist and outline for the ESI meet-and-confer will likely have the most immediate impact on the course of practice.

Another positive development in the JETWG Recommendations is the acknowledgment of the importance of security and confidentiality of ESI productions. The JETWG Recommendations expressly recognize the risk that civil litigants could acquire copies of criminal productions and advise the parties to discuss protocol to avoid this at the meet-and-confer. Further, counsel to third parties who are making ESI productions to the government during an investigation should remind the government of this risk—and the need to address it at a meet-and-confer with defense counsel. The JETWG Recommendations also specifically reference Federal Rule of Evidence 502 and suggest that parties enter into an agreement or, better still, get a court order to limit the waiver of privilege when producing ESI. Any party producing ESI to the government should consider seeking such an order under Rule 502.

The JETWG Recommendations wisely forbid printing ESI documents to paper. Instead they require production in industry-standard formats that are easy to use, inexpensive to make, and limit the amount of metadata that producing parties must review. Rather than imposing a rigid list of production requirements such as those that appear in the Securities and Exchange Commission’s Data Delivery Standards, the JETWG Recommendations allow parties to craft the production format so that it best fits the case. But, by including three goals (preservation of the data, usability, and cost efficiency) as well as limited but specific rules, the JETWG Recommendations provide a standard for comparison so that disputes over production format can be minimized.

Lastly, the JETWG Recommendations should be applauded for pushing the envelope and touching on cutting-edge issues. They bravely discuss the production of less understood but equally important ESI such as phones, voice mails, and handheld devices. The guidance is limited, but other ESI standards avoid the complexities of these devices entirely. This area will develop as more lawyers become familiar with the types and amount of data that these devices contain. Also, the JETWG Recommendations allude to the idea of using predictive coding or other forms of advanced filtering to aid review: “the volume of ESI in many cases may make it impossible for counsel to personally review every potentially discoverable item, and, as a consequence, the parties increasingly will employ software tools for discovery review.” While not an endorsement of predictive coding per se, it is an acknowledgment that such tools may be used.

What Needs Work
The JETWG Recommendations expressly do not apply to ESI collection and production during the investigative stages, where most ESI discovery—and expense—occurs. By so limiting the scope of the JETWG Recommendations to only the disclosure of information under Federal Rules of Criminal Procedure 16 and 26.2, Brady, Giglio, and the Jencks Act, the authors limit the extent of the impact the recommendations will have. By way of explanation for this restriction, the authors state that “(t)he legal principles, standards, and practices applicable to the discovery phase of criminal cases serve different purposes than those applicable to criminal and civil investigations.” While this argument may be true, the JETWG Recommendations offer no hint as to why its core principles of cooperation and efficiency should not also apply to subpoenas issued during the investigative stages of a criminal matter. The answer is that they should and for that reason, one can expect that the JETWG Recommendations will likely influence government practices in the investigative stage.

Under the JETWG Recommendations, the government must produce ESI in industry-standard and readily usable formats, and they set forth specific guidance and instructions to help accomplish this. It would follow then that the government should endeavor to receive the ESI in that format at the investigative stage. Thus, the production formats proscribed in the JETWG Recommendations will likely carry over to investigative productions. This should also lead to increased and earlier communications between the investigating agency and the subpoena recipient so as to encourage the use of the preferred production formats.

The application of the JETWG Recommendations is also limited to matters where the volume or nature of ESI “significantly increases the complexity of the case.” Such matters could be those that involve large amounts of ESI, unusual forms such as proprietary databases, or multiple parties. Although this makes sense, the JETWG Recommendations could be helpful in all matters, and thus should apply to any circumstance where they can create efficiency or avoid undue burden or cost. The JETWG Recommendations acknowledge that the management of ESI changes rapidly with new technologies and that criminal litigants will develop “standard processes” that become “the accepted norm.” Such a standard process could be the application of the JETWG Recommendations or other guidelines based on cooperation, proportionality, and efficiency.

More specific areas of concern include the failure to recognize that electronic scanning and production of paper documents is both more usable and less costly than the production of printed copies. Copy machines today are basically a combination scanner and printer, and scanning is a necessary component of printing. The JETWG Recommendations correctly prohibit the production of ESI in paper format but by expressly approving of print productions for paper documents, they encourage this inefficient practice. Instead of broadly authorizing the production of paper documents in print form, the JETWG Recommendations should limit such productions to the very limited situations where it may be more efficient than production in an electronic format.

Lastly, the JETWG Recommendations do not sufficiently address the use of shared electronic databases or repositories. Guidance is needed on how to maintain privilege, avoid the disclosure of work product, and ensure security. Counsel need to know that this process, which has the potential to significantly reduce costs, can be safe and reliable. E-discovery vendors that provide these services need guidance on how they can better design their software to meet the needs of counsel. The JETWG Recommendations were an excellent opportunity to increase awareness of the potential of shared databases, and perhaps future versions will do so. The requirement that parties must share the benefit of any processing performed seems a logical first step to sharing the processed database itself.

Conclusion
E-discovery and procedure in civil matters emphasizes speedy and cost-effective resolution of disputes. Criminal matters, on the other hand, must place the preservation of constitutional rights over efficiency. Cooperation is not an unknown term to prosecutors and defense attorneys, but they must learn how to apply it to e-discovery. The JETWG Recommendations are a good first step towards that goal. The JETWG Recommendations encourage us to (1) be reasonable, (2) educate ourselves, (3) focus on the disputes that matter to defendants, the prosecution, and third parties, and (4) to cooperate with each other in the interest of efficiency—all without compromising the protections of the Constitution. This is a lofty aim, but the JETWG Recommendations get us a step closer.

Keywords: criminal litigation, ESI, AOUSC, DOJ, ODS, FDO, Criminal Justice Act

Clifford E. Nichols III is senior counsel and Stanley A. Twardy Jr. is a managing partner with Day Pitney LLP in Stamford, Connecticut.

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