Criminal E-Discovery (Part 1 of 5)

Criminal E-Discovery: 21st Century Paperless Trails (Part 1 of 5)

August 28, 2012

In this five-part series on criminal e-discovery, I will look at the burdens, benefits, and federal rules surrounding the use of e-discovery in criminal proceedings. E-discovery is rapidly making headway in civil proceedings, but the criminal courts have not taken to digital evidence as quickly. This short series of articles will give insight to the current status of e-discovery in criminal proceedings as well as recent cases of interest.

This year may be the year that the criminal bar catches up to the civil bar with regards to e-discovery. In February the Joint Electronic Technology Working Group, spearheaded by the Department of Justice, issued its preliminary e-discovery directive, available here. In the intervening months, more and more e-discovery has come into play with criminal cases. Most recently the tweets of Malcolm Harris have been the center of attention, as Judge Sciarrino Jr. recently ordered Twitter to respond to a subpoena.

Additionally, the landscape of criminal defendants is changing rapidly. The CEOs of the large mortgage companies or financial firms do not see themselves as common criminals; they make their deals at the club or on the golf course. The problem is that the business following such meetings is memorialized by electronic communication, and unknown to them, these business practices have caught the attention of the government. Welcome to 21st century communications.

Modern day communications, through e-mail, the web, instant messaging, electronic faxing, and digital voicemail, expand the nature and location of “relevant evidence” as well as the obligations to obtain, preserve, produce and manage this evidence. Courts quickly need to recognize the increasing necessity for the accused to access electronically stored information (ESI) in order to effectively build a defense. Furthermore, the context in which the ESI was forensically ascertained may be as important to a defendant as the substantive information recovered. Such is the case in United States v. Jones (2012), where authorities attached a GPS tracking device to a suspect’s vehicle. The data obtained without a warrant was held by the Supreme Court to be an unlawful search under the 4th Amendment.

Free e-mail accounts like Yahoo!, Gmail, and Hotmail, along with mobile devices expand the universe of the “forms” of evidence at issue (irrespective of whether the crime being prosecuted is “corporate” or “street” in nature). The landscape of criminal defendants is also changing rapidly.

E-discovery assumes a critical role unique to criminal proceedings. Unlike hard copy documents and tangible evidence (e.g., gun, picture, clothing, etc.), ESI may contain exculpatory evidence that may not be readily apparent to the prosecution that maintains custody and control over the ESI. Additionally, the prosecution may improperly be in possession of ESI that should be the subject of a motion to suppress which may exculpate a defendant or affect the strength of the prosecution’s case.