In February 2012, the Joint Electronic Technology Working Group (JETWG) published the first substantial, formal guidance for e-discovery in federal criminal cases. The JETWG’s Recommendations for Electronically Stored Information (ESI) Discovery in Federal Criminal Cases have generated considerable interest in the months since publication.
E-discovery has long been a topic of interest to civil practitioners. Because most information is now created and stored electronically, managing large amounts of electronic data is a regular feature even in small civil cases. Case law has developed for more than a decade to define the obligations and rights of parties and counsel when searching for, preserving, and producing ESI. The Federal Rules of Civil Procedure have incorporated that law into amendments to Rule 26, and an industry exists to help law firms and clients manage their responsibilities and implement “best practices” for data management in the civil context.
The criminal bar has been affected by the massive increase in the relevance of ESI as well. From street crime to sophisticated financial crimes, ESI often plays a significant role. ESI can provide prosecutors with key evidence even in the most straightforward cases, with incriminating text messages, social media posts, or web searches retrieved through forensic examination of a seized computer. In some sophisticated cases, the majority of evidence may derive from ESI. See, e.g., Clark v. State, 915 N.E.2d 126, 129–31 (Ind. 2009) (affirming admission of incriminating MySpace post in murder trial). ESI has also played an important role for the defense in criminal cases. For example, prosecutors have dropped charges when forensic evidence demonstrates an absence of knowing possession of illegal images or where restored evidence supports a defendant’s version of events in fraud and identity theft cases. The importance of ESI in criminal litigation cannot be overstated.
Until now, however, practitioners have not had rules or formal guidance on how to manage the preservation and disclosure of ESI in criminal cases. The need for rules and guidance is apparent. Without a consistent framework of applicable standards, judges are left to make it up on a dispute-by-dispute basis. This common-law style regulation may be a history-tested means of resolving substantive legal questions, but it is an inefficient way to manage the logistics of modern litigation.
The new recommendations are a step toward formalizing practice and expectations involving ESI in federal criminal cases. They also borrow heavily from rules and practices in the civil system. Civil practitioners and law firms with existing e-discovery expertise can leverage their experience with ESI to benefit their clients under indictment. A review of the recommendations, however, raises a number of concerns that may limit the extent to which expertise developed in the civil arena can be transferred to criminal cases.