U.S. Government Not Exempt from Electronic Discovery Obligations

John Blumenschein United States Magistrate Judge Hugh Scott of the Western District of New York recently ordered the U.S. Government to provide a defendant with electronically stored information (ESI) in its native format or a searchable manner in United States v. Briggs et al, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011), a copy of which can be found here. Although U.S. v. Briggs is a criminal matter, Judge Scott looked to the Federal Rules of Civil Procedure for guidance in determining the outcome; and it shows that the U.S. Government is not exempt from ESI obligations in electronic discovery.

The issue partially arose because the Federal Rules of Criminal Procedure are silent on the way in which ESI is to be produced to the opposing parties. The defendants in Briggs were charged with conspiracy to distribute cocaine and multiple counts of money laundering. The discovery at issue pertained to government wiretaps that contained conversations of the alleged crimes. The government routinely uses a program called IPRO to control discovery, and it was with this program that the U.S. produced the wiretaps to the defendants in non-searchable PDF and TIFF formats.

In response to the production of non-searchable documents, the defendants filed a motion to compel production of the documents in either their native or searchable formats. In response, the government argued that it would be cost prohibitive to produce the documents as requested by the defendants and that IPRO is the standard nationwide for United States Attorneys’ Offices.

Judge Scott noted that there is no ESI regime located in the Federal Rules of Criminal Procedure. For instance, Federal Rule of Criminal Procedure 16, which governs criminal discovery, focuses on what is produced and not the manner of production. Judge Scott also stated that there is very little case law and authority on the use of ESI in criminal cases.

He did, however, refer to two cases: one where the court allowed the ESI protocols in the civil rules and one where the court did not. In United States v. O’Keefe, the District of D.C. Court applied Federal Rule of Civil Procedure 34 in a case involving a large amount of production stating that there is no criminal equivalent for the production of documents. United States v. O’Keefe, 537 F.Supp.2d 14 (D.C. Feb. 18, 2008). He also, however, looked to the Sixth Circuit Court of Appeals where they ruled that the criminal rules are silent on the form of production, and as such, the documents do not need to be organized in any particular fashion. United States v. Warshak, 631 F.3d 266 (6th Cir. Dec. 14, 2010).

Judge Schott ordered the government to produce the documents in native or searchable form because it is in the best position to produce the documents in that manner. He stated that the government placed the documents from their native format into a common database (IPRO) and that it would not be fair to have one defendant bear the costs of creating a searchable database. Additionally, ethical issues could arise if one defendant compiled the searchable database for all defendants. In the end, however, Judge Scott applied this standard to this case only and was unwilling to extend it to other cases.

As noted earlier, Judge Scott sees a problem with a lack of guidance from the criminal rules on the mode of production of documents in criminal cases. “The problem now is that, absent a rule, each judge faced with a motion to compel criminal discovery with ESI data will have to devise his or her own scheme.” U.S. v. Briggs at 6.

Although electronic discovery disputes in criminal matters are not as pervasive as they are in federal civil litigation, it is an issue that is on the rise. Criminal defendants are entitled to exculpatory material from the government (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (U.S.S.C. May 13, 1963)). And as this case demonstrates, with technology being becoming a more integral part of governmental investigations and prosecutions, much of this material is now in electronic format. Governments will need to be able to produce such information in criminal cases in the same manner as for civil e-discovery.

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