ESI In The Criminal Context: A Call For Clarification

Although the Federal Rules of Civil Procedure set the stage for electronic discovery in civil cases, there is no such express regime in the criminal context.

The absence of such a standard became evident in a recent case in the Western District of New York. In United States v. Briggs, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011), defendants were charged with several counts related to the distribution of cocaine. The criminal investigation leading to these charges involved court-authorized interceptions of cellular telephone communications indicating that the defendants were allegedly engaged in drug trafficking.

In its voluntary discovery, the Government furnished defense counsel with disks containing thousands of pages of documents relating to these communications using the IPRO program routinely used by the U.S. Attorney's Office in cases involving multiple defendants. Defendants claimed this reported data had problems with omissions and inaccuracies resulting from the collection and management system used. The defendants also objected to the Government's failure to provide the data in the "most useful form that is readily available" and claimed the ".tiff" files received could not be sorted or searched. The appropriate format, according to the defendants, was either the ".pdf" or native format. The Government, in response, refused to provide the files in these formats arguing that the cost of reproduction was prohibitive, that it had already produced the particular data requested by defendants, and that it should not bear the burden of reproduction merely because it would be more helpful or useful to the defendants.

Examining this issue, the court began by pointing out the absence of a standard in criminal cases for the production of ESI. While Rule 16(d)(1) of the Federal Rules of Criminal Procedure, the general authority ordering the manner of production in criminal cases, provides that, "[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief," it does not specify the manner in which such production should be made. The court, therefore, turned to two other jurisdictions addressing criminal prosecutions involving extensive document production. In United States v. O'Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), the United States District Court of the District of Columbia, conceded that there was no criminal equivalent to, and, thus, applied, Federal Rule of Civil Procedure...