Criminal E-Discovery, Part 4 of 5: Difference in E-Discovery in Civil Versus Criminal Cases

Criminal E-Discovery, Part 4: Difference in eDiscovery in Civil Versus Criminal Cases
Part 4 of 5 

A critical concern in modern e-discovery is the imbalance of discovery rights between civil and criminal law. Criminal defendants are potentially at risk of being denied access to exculpatory, mitigating, or impeachment evidence that may be legitimate material. The often overwhelming and daunting task of mounting a full and complete defense to a prosecutor’s charges can result in a defendant pleading to criminal charges before e-discovery is completed. Criminal defendants’ access to ESI varies from court to court on both the state and federal levels, because of the lack of uniform rules governing e-discovery.

Many cases pursued by prosecutors are investigated in tandem with other governmental agencies (within the parameters of laws governing parallel proceedings) including Congress, which may be investigating potential civil or regulatory violations of federal laws. Absent common procedures among forums for the handling of ESI, there exists a risk to defendants when they produce ESI to the government in non-criminal proceedings. Such a risk exists when people produce ESI without knowing whether they are “targets” or witnesses in criminal actions. Defendants have a constitutional right to know exactly the nature and cause of the government’s case, and when applied to the 21st century, it should include the production (or at the very least the inspection) of ESI. Therefore, defense counsel must be familiar with ESI which is not apparent on the face of a document in electronic form (e.g. mega data which is data about data).

Most targets of a criminal investigation are not privy to information from intergovernmental-agency efforts, such as the government’s motive in issuing administrative subpoenas when a target is unaware of a parallel proceeding. In U.S. v. Kordel, the United States Supreme Court made it clear that parallel investigations conducted by civil and criminal enforcement agencies must meet the requirements of the Fifth Amendment’s Due Process Clause. Kordel involved a corporate vice-president who answered the government’s interrogatories during a civil proceeding reproving allegedly misbranded products. Had the defendant-vice president been more informed, he could have invoked his privilege against compulsory self-incrimination. Failing to do so, he was not able to assert that he was compelled to give testimony against himself as ground for overturning a conviction for introducing misbranded drugs into interstate commerce (even if information supplied in answers provided evidence or leads useful to government in criminal prosecution). The Court did find that “[I]t would stultify the enforcement of federal law” to limit the government’s discretion to conduct dual investigations strategically; the Court suggested that a defendant may be entitled to a remedy where “the [g]overnment has brought a civil action solely to obtain evidence for its criminal prosecution.”

** This is the fourth part in a five-part series which comprise an abridged version of the article “Criminal Cases Gone Paperless: Hanging With the Wrong Crowd,” written by Daniel Garrie and published in the San Diego Law Review.