Criminal defense lawyers are as obligated as their civil law brethren to be conversant with electronic discovery and its various attendant forms of electronically stored information in order to effectively represent their clients. Modern day communications, through email, the Internet, 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.

ESI evidence when handled properly, or if mishandled, can significantly impact the outcome of a client’s civil or criminal case. Importantly, eDiscovery 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, who maintains custody and control over the ESI. Additionally, the prosecution may improperly possess ESI that should be the subject of a motion to suppress. Finally, the dynamic nature of ESI has the potential to develop into Brady4 material. The government’s obligations under Brady are not rooted in any particular constitutional right to discovery, but rather in the due process protections defendants are afforded in criminal proceedings.

A significant issue many criminal defendants may encounter is ascertaining and obtaining electronic evidence in the possession of the prosecution. The greatest challenge may well lie in successfully convincing the court that the prosecution’s approach to the pre-trial exchange of ESI will adversely impact the defendant’s constitutional and procedural rights in building a full and fair defense to the government’s charges. The expense and burden of e-discovery must be balanced against the potential of a criminal defendant losing one’s liberty.

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