Criminal E-Discovery, Part 2 of 5: The Burden of Technological Disclosure

Criminal E-Discovery, Part 2: the Burden of Technological Disclosure
Part 2 of 5

The greatest challenge in Criminal eDiscovery may be ascertaining and obtaining electronic evidence in the possession of the prosecution. The defense must successfully convince the court that without “full and appropriate” pretrial disclosure and exchange of ESI, the defendant lacks the ability to mount a full and fair defense. Lawyers know that due process, as a general proposition, adapts to facts as they are presented in specific circumstances, and due process is a progressive principle that has been applied to mediums containing ESI, such as search warrants of computers and testimonial evidence residing on audiotapes.

A defendant’s rights must be expanded to accommodate contemporary applications. Criminal ESI discoverability should be governed by the same due process analysis courts have recognized for other areas of discovery. The obligation to make relevant evidence available to the accused or to suppress its use when improperly obtained should be aggressively protected. Criminal defendants require reasonable access to ESI evidence so their counsel may capably advocate for the protection of their Fourth, Fifth, and Sixth Amendment rights.

ESI evidence gives rise to financial concerns; the vast majority of criminal defendants are indigent; thus, without funds to pay for costly e-discovery. The counsel for such defendants could look to the state and judicial system for required funds, but the expense and burdensomeness of e-discovery should be balanced against the government’s needs and the defendant’s rights. Lawyers should be prepared to explain, and judges should be aware of the problems and expenses potentially associated with ESI, so they would not “accidentally” issue a general discovery order which could be overly broad making it burdensome and costly.

Over the past decade, courts have attempted to have e-discovery keep pace with technological advances. In McPeek v. Ashcroft, the court used a “marginal utility” approach to craft an order as to e-mails within a certain period which might contain relevant discovery, including requiring the producing party to pay the costs but keep an accounting. In Rowe Entertainment, Inc. v. William Morris Agency, Inc., the party charged with production of e-mail stored on backup disks requested the court to issue a “blanket” protective order precluding such discovery due to costs. The Rowe case was further addressed in Zubulake v. UBS Warbug, LLC, where the plaintiff requested e-mails from the archival media, and the defendant, citing the Rowe case, claimed undue burden and expense and urged the court to shift the cost of production to the plaintiff. The court refrained from applying Rowe in a strict manner, and noted that it might result in a disproportionate shifting away from large defendants. The court ultimately issued a modified approach by ordering a partial discovery of the e-mail selected by the plaintiff at the defendant’s expense. Then the parties were instructed to evaluate the search results to determine if further searching and expense was warranted.

** This is the second 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.