Criminal E-Discovery Part 3 of 5: FRCP Rule Amendments and Defendant Rights

Criminal E-Discovery Part 3: FRCP Rule Amendments and Defendant Rights
Part 3 of 5

In the recent past, corporations have been ordered to preserve and produce, sometimes at considerable expense, computerized information, including: e-mail messages, support systems, software, voice mail systems, computer storage media, and backup tapes and telephone records. On December 1, 2006, the federal courts responded to the growing demands and complexities of e-discovery by amending Federal Rules of Civil Procedure (FRCP) rules: 16, 26, 33, 34, 37 and 45 to address the discovery. Many states, including California, have begun to do the same, but as expected the lack of resources still leave criminal defendants and corporate business in a difficult predicament.

The amended FRCP Rule 34(a) defines ESI as “other data or data compilations stored in any medium from which information can be obtained directly or, if necessary, after translation by the responding party into a reasonably usable form.” Courts have applied the amended rules by requiring parties to a case, whether corporate or individual, to preserve, identify, disclose, and produce, on pain of monetary and other sanctions, relevant information residing on any electronic device. What happens when relevant evidence suffers digital spoliation?

FRCP 37(e) provides a limited “safe harbor” from sanctions when the loss of ESI as a result of the “routine, good faith operation of an electronic information system” occurs. Litigants must demonstrate they took “reasonable steps” to preserve in “good faith” evidence they knew or should have known to be relevant to litigation “reasonably anticipated” or commenced. Therefore, a party cannot evade the safe-harbor provision in an effort for ESI to self-destruct. The amended FRCP addresses digital spoliation by recognizing that it can occur in various ways, and will result in varying penalties depending upon the facts and legal context in which the claim arises. What recourse is available to a defendant whose rights are violated by the prosecution’s conduct contravening the “safe harbor” rules? A criminal defendant’s liberty is at stake; spoliation of evidence could result in a dismissal of the criminal case.

Criminal lawyers beware, the Federal Rules of Criminal Procedure (Fed. R. Crim. P.) do not afford criminal defendants an established right to access ESI beyond the scope of Fed. R. Crim. P. 16, or Fed. R. Crim. P. 17. The accused should argue that the spirit of the Federal Rules of Criminal Procedure provide criminal defendants with a constitutional right to access ESI in the possession, custody, or control of the prosecution as third parties.

Generally, a criminal defendant is entitled to a rather limited discovery, with no general right to obtain the statements of the government’s witnesses before they have testified. Additionally, it is not unreasonable to assume this principle would apply to items such as e-mail, text messages, and other forms of ESI. This does not seem just when in civil litigation, by contrast, a party is entitled, as a general matter, to discovery of any information sought if it is relevant and “reasonably calculated to lead to the discovery of admissible evidence.”

** This is the third 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.