Criminal E-Discovery (Part 4 of 5)

Criminal E-Discovery: 21st Century Paperless Trails 

January 6, 2013| Law & Forensics
Part 4 of 5

Daniel B. Garrie, is the  Senior Managing Partner  at Law & Forensics LLC and works out of the Seattle, Los Angeles, and New York offices. He focuses on e-discovery, digital forensics, cyber security and warfare, data privacy, and predicitive coding working with law firms, governments, companies, and non-profits globally. 

In this fourth post of the five-part series on criminal e-discovery, Daniel Garrie looks 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.

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

In the last installment I discussed some specific differences between civil and criminal procedural rules and the effects it can have on a trial. In this post I will look further into the disparity between civil and criminal allowances for discovery.

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 electronically stored information (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. metadata, 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.”

While Kordel is not a recent case, the parallel investigations continue to apply with the advent of e-discovery. The combination of an unknowing defendant coupled with a parallel civil and criminal investigation, puts both the defendant and counsel at a disadvantage to say the least. It is critical that counsel for the defendant educate themselves on e-discovery and the implications it has for their caseload.

In the fifth and final installment of this series, I will discuss the Fourth Amendment and its potential impact on criminal litigation.