AO, Justice Department Jointly Recommend ESI Discovery Practices

The digital revolution is producing increasingly complex litigation and discovery issues in federal criminal cases. Most challenging for federal court practitioners are cases involving electronic discovery, also known as “electronically stored information” (ESI).

After 18 months of negotiation, the Administrative Office (AO) and the Department of Justice jointly have developed a set of recommendations aimed at making the production or exchange of ESI discovery between prosecutors and defense counsel more efficient and cost-effective.

“An expansion in the amount of digital data, the number of devices on which it can be created and stored, and the declining cost of storing such information have resulted in the increased presence of ESI in federal criminal litigation,” said Theodore Lidz, the AO’s Assistant Director for the Office of Defender Services. “Often the amount of information ranges from tens of thousands to millions of pages. While difficult to quantify, the expectation is that use of the recommendations will limit overall criminal justice discovery costs, reduce the number of discovery disputes, and shorten the time for processing complex cases.”

Recently, the Recommendations for Electronically Stored Information Discovery Production were sent by the deputy attorney general to all U.S. attorney offices, and by the AO to all federal defenders and Criminal Justice Act (CJA) panel attorneys. Training also has begun for defender and prosecutorial personnel.

“It was anticipated that the recommendations would be used as soon after their February release as possible in appropriate cases, and we are aware that parties in some cases have already discussed the protocols and implemented some of the recommendations,” Lidz said.

Andrew Goldsmith, the National Criminal Discovery Coordinator for the Department of Justice, served as the working group’s co-chair. He called the recommendations “a pragmatic approach to the increasing challenges presented by ESI in criminal cases.”

“They are the product of a unique level of collaboration among representatives from the Department of Justice, federal public defenders, and private attorneys who accept appointments under the Criminal Justice Act,” Goldsmith said. “The recommendations provide meaningful, how-to guidance in dealing with ESI in a way that minimizes unnecessary costs and motion practice.”

He added that all federal prosecutors will receive training on the recommendations this year “to ensure that they are on the same page as their counterparts in the federal defenders’ offices and CJA counsel.”

The recommendations are built on 10 principles:

• Lawyers have a responsibility to have an adequate understanding of electronic discovery.
• In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.
• At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an ongoing dialogue may be helpful.
• The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry format standards.
• When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.
• Following the “meet and confer,” the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.
• The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.
• In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a coordinating discovery attorney.
• The parties should make good-faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
• All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

“For years, ESI has often been produced or exchanged in electronic formats or on a media that the receiving party is unable to open, search, or otherwise use effectively, or those processes have been unnecessarily inefficient. Often, either prosecutors or defense counsel have had to reprocess the electronic information, wasting both time and money,” Lidz said.

“The recommendations, by calling for the parties to ‘meet and confer’ to discuss and resolve discovery issues and to use industry or reasonably useable electronic formats, provide a framework for eliminating or minimizing duplicative processes. The protocols also include provisions that will allow federal judges to manage discovery issues more effectively,” he said.

The recommendations were created by Department of Justice/ Administrative Office Joint Electronic Technology Working Group, which met about a half dozen times between May, 2010, and the fall of 2011. Its members included Federal Public Defender Donna Elm (Middle District of Florida) and Doug Mitchell, the CJA panel attorney district representative in Nevada. Other members included Sean Broderick, the national litigation support administrator in the AO’s Office of Defender Services.

The working group obtained input from attorneys, paralegals, and technology staff, and coordinated its efforts with various Judiciary liaisons, including Magistrate Judge Jonathan Feldman (Western District of New York), who serves on the Judicial Conference’s Committee on Defender Services. The recommendations can be read online here.