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Recommended E-Discovery Practices for Federal …

Recommended E-Discovery Practices forFederal criminal justice Act Casesby Douglass Mitchell1 and Sean Broderick2I. INTRODUCTIONF ederal litigation across the country is experiencing an explosion of electronic data. Thanks to the computer revolution, the world has moved from being primarily paper based toone where most information is created and stored electronically. criminal cases are not immuneto this paradigm shift. As many attorneys who represent indigent criminal defendants arecurrently experiencing, the amount of data associated with any given case continues to grow insize and complexity each year, making the management and review of evidence, which includes1 Douglass A.

Recommended E-Discovery Practices for Federal Criminal Justice Act Cases by Douglass Mitchell1 and Sean Broderick2 I. INTRODUCTION Federal litigation across the country is experiencing an explosion of electronic data.

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1 Recommended E-Discovery Practices forFederal criminal justice Act Casesby Douglass Mitchell1 and Sean Broderick2I. INTRODUCTIONF ederal litigation across the country is experiencing an explosion of electronic data. Thanks to the computer revolution, the world has moved from being primarily paper based toone where most information is created and stored electronically. criminal cases are not immuneto this paradigm shift. As many attorneys who represent indigent criminal defendants arecurrently experiencing, the amount of data associated with any given case continues to grow insize and complexity each year, making the management and review of evidence, which includes1 Douglass A.

2 Mitchell is an attorney with the law firm of Boies, Schiller &Flexner. In 1995, the Federal District Court Judges in Nevada appointed him to be a mentor inthe district s criminal defense training program. In his capacity as a mentor, he trains andprepares defense attorneys to practice criminal law in the United States District Court for theDistrict of Nevada. He has served as Chairman of the Attorney Advisory Committee onImplementation of CM/ECF electronic case filing system for the Federal District Court for theDistrict of Nevada.

3 Mr. Mitchell has also been a member of the Local Working Group onElectronic Technology in the criminal justice System for the Federal District Court for theDistrict of Nevada and is currently a member of the Administrative Office of the United StatesCourts Office of Defender Services Expert Panel on Litigation Support in criminal justice ActCases. Mr. Mitchell also serves as the Co-Chairman of the Board of Governors for theOrganization of Legal Professionals, an organization dedicated to establishing guidelines andstandards for legal professionals and vendors dealing with E-Discovery Broderick is the National Litigation Support Administrator for the Office ofDefender Services (ODS).

4 He provides guidance and recommendations to Federal courts, federaldefender organization staff and court appointed attorneys on complex cases, including evidenceorganization, document management and trial presentation. As an investigator, mitigationspecialist, and paralegal, Sean has many years of experience handling a wide range of complexcriminal and civil cases, including multi-defendant, white collar fraud, Federal trial, capital trial,and habeas corpus death penalty cases. He has lectured and provided hands-on training to legalprofessionals on various criminal defense topics internationally and throughout the UnitedStates.

5 Sean s colleagues on ODS National Litigation Support Team are Kelly Scribner and AlexRoberts. All are available to provide information and guidance to FDO and CJA-panel attorneyson their court appointed cases. Sean can be reached at (510) 637-1950, Kelly at (510) 637-1952, or and Alex at (510)637-1955, or 1 of 10 December 10, 2009 Recommended E-Discovery Practices for FPD/CJA Attorneyspaper, scanned documents, electronically stored information (ESI )3, audio files, video files and avariety of other data, a significant challenge in Federal criminal cases.

6 To provide a concrete example of the consequences of expanding technology inlitigation, in a recent multi-defendant criminal justice Act (CJA) case, the court-appointedattorneys had to develop ways to organize, review and analyze initial discovery that consisted of240,000 images on 19 DVDs and CD Roms, an additional 185 banker boxes of paper documents(approximately 460,000 pages), and 30 forensic images of computers, servers and thumb driveswhich held approximately terabytes of data. To put the terabytes of data into context,this is the equivalent of 215,000,000 pages or 86,000 banker boxes of This initialset of discovery did not include third party information directly relevant to counsels defense,which totaled an additional 750,000 pages.

7 As is evident, the challenge of processing,organizing, reviewing, and analyzing this volume of information is the amount of data involved in this instance is extreme for a CJA case, manyCJA cases now contain relevant information which originally came from a computer system,resulting in a significant increase in the volume of information which has to be reviewed andanalyzed. Consider that many individuals and small businesses have at least one computer andother associated electronic media, if not more. This means that a small business which formerlyrelied on a four-drawer file cabinet of paper records, now maintains the equivalent of twothousand four-drawer file cabinets full of such records in the form of are no magic bullets for addressing large volume paper and ESI cases.

8 However, Practices arising from the experiences of civil litigators and criminal practitioners who havesuccessfully addressed the twin problems of handling enormous amounts of data and digestinginformation contained in various and diverse computer file formats can be of assistance to3 ESI is any electronically stored information, regardless of the media or whether itis in the original format in which it was created, as opposed to stored in hard copy ( on paper). Examples of ESI include e-mail, spreadsheets, word processing documents, text or instantmessaging, audio, video or any content in a digital to the Electronic discovery Reference Model, generally acceptedaverages employed in the electronic discovery industry estimate that a terabyte of data containsapproximately 50,000,000 pages of paper, or 20,000 banker boxes of documents.

9 "Processing --Metrics," , (last visited December 9,2009).5 George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt? 13 Rich. & Tech. 10 (2007), (last visited December 11, 2009).Page 2 of 10 December 10, 2009 Recommended E-Discovery Practices for FPD/CJA Attorneysfederal defender organizations (FDO) or CJA panel attorneys who finds themselves involved insuch a case. The purpose of this article is to provide recommendations on handling electronicdiscovery in an effective and efficient manner, so that quality representation can be provided inthese cases.

10 The list in Section II provides a broad overview of principles and Practices thathave proven to be useful in managing large electronic discovery onslaughts of information of the magnitude mentioned, it can betempting for practitioners to fall back on the same familiar, tried and true discoverymanagement techniques that serve so well in cases involving a handful of bankers boxes of paperdocuments. For better or worse, tried and true is no longer true and is not an option inmodern-day litigation. Besides the issue of volume, today s cases often involve information thatis never put to As people who have worked with electronic discovery can attest,electronic files often contain additional information that is not visible if you simply hit print and read the document.


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