Wednesday, September 23, 2009

EDD in Criminal Cases

From the Association of Litigation Support Professionals

We’re all aware of the enormous attention paid to e-discovery in civil cases, especially since the changes to the FRCP. But what about criminal cases? White collar criminal prosecutions have become more common in the post-Enron world as the Government has sharpened it’s focus on corporate crimes and focused on activities such as securities fraud, bank fraud, wire fraud, racketeering, and money laundering.

And prosecution of these cases can closely resemble the characteristics of a complex civil case. Discovery can include millions of pages of ESI from standard sources such as computers and PDA’s but may also involve hundreds of hours of wiretaps, body wires and surveillance videos. At the end of one such complex criminal case in which I was involved, the cost of transcribing recordings of wiretaps and body wires actually exceeded the fees for the appointed defense counsel!

But criminal cases do not have the constitutional right to discovery of evidence which mandate procedure in civil trials. The Brady rule (Brady v. Maryland, 373 U.S. 83 (1963),) requires that exculpatory evidence be provided to the defense and the Jencks Act requires production of verbatim transcripts and other notes or documents related to testimony by government agents, employees or witnesses. But the request for production must be made by the defendant and is required only AFTER the witnesses have testified and are not generally available in pre-trial hearings.

So what constitutes Brady material is often the source of prolonged pre-trial motion practice and although many federal administrative agencies have incorporated Jencks standards into their procedures, local rules in the various federal courts may vary as to the application of Jencks.

The result is that document exchange between the parties in criminal cases is not the result of the negotiation that exists in civil cases. No litigation hold letters, no meet and confer, no motions over delivery format. A warrant is served without notice, an agency seizes computers and when they are done processing the ESI the agency provides defense counsel a copy of what they seized in a fixed format, typically EnCase or FTK.

So what does this mean for the defense attorneys in these cases? To get some real world perspective I called Russ Aoki, a Seattle attorney specializing in white collar criminal cases who is often appointed liaison counsel for appointed defense teams in complex criminal cases. I have worked for Russ on several such cases, including the government prosecutions of both the Banditos and Hells Angels motorcycle clubs, and knew he would have a good perspective on this issue.

Russ told me he was introduced to complex criminal cases in 2003 when he was appointed counsel for Kevin Lawrence, the CEO of health care company Znetix, who had been indicted on a $92 million securities fraud claim and was indigent following a series of civil cases and asset forfeitures.

More on the Znetix case in a minute, but first I asked Russ what differences he sees between civil and criminal cases when it comes to e-Discovery. He agrees with my points about lack of negotiation and fixed formats and added a few more of his own:

Criminal cases are “on the clock”, with issues of speedy trial and defendants who are often in custody and want to get to trial as soon as possible

Attorneys are not always as tech savvy as their civil counterparts

Document review is difficult with in custody defendants who have restricted or no access to computers

Collaboration with co-counsel is difficult given a system that rewards defendants who cooperate with the government

Technology purchases are difficult because the judge must approve all expenditures (more than 80 percent of criminal defendants in Federal court appear with court appointed counsel because they are indigent)

Russ summed it up this way, “Unlike a complex civil case, criminal defense lawyers tend to be solo practitioners or from small law firms. The majority of criminal defense attorneys have few staff, if any and they must balance numerous cases that require far more frequent court appearances then in the civil justice system. To further increase the pressures on them, an immediate trial is mandated by the constitutional right to a speedy trial. A client who is unwilling to waive his right to a speedy trial requires the criminal defense attorney to use tools to review and organize discovery in a quick and effective manner.”

Those tools must, of necessity then, be technological. Going back to the Znetix case, Russ recalled that “Within a few days we learned that there were 1.5 to 2 million pages of potentially relevant documents spread out in several cities along the west coast. The documents were mostly business records, some of which pertained to the issuance of securities that were the basis of the prosecution”.

He went on to say, “There was no doubt we needed to database the discovery. We calculated that the average document in this case was likely to be 3.5 pages in length. A person could read 10 documents an hour, including writing down a few notes. Even assuming a person could work at that pace for 8 hours a day, 7 days a week, it would take that one person 14.7 years to read 1.5 million pages of documents. With a team of two lawyers and a paralegal, we could easily trim that time down to…oh, let’s see…just under 5 years.” The solution was technology but being court-appointed meant he needed court approval. Luckily the judge, the Honorable Marsha J. Pechman of U.S. District Court for the Western District of Washington, was interested in technology and after a demonstration of the CaseShare database Russ wanted to use, approved its use.

Russ noted that “The use of a Web-based document repository was a critical tool that allowed a defense team of only three to rapidly digest 1.5 million pages of documents. Without it, we would have been lost.”

Where is all this headed in the future? Well in my opinion towards more incorporation of the FRCP provisions regarding e-Discovery by criminal case judges. At least one judge has done so already, as Judge Fasciola applied these civil rules to a federal criminal case in United States v. O’Keefe, 537 F. Supp. 2d 14, (D.D.C. 2008).

And one state court system has ruled that the fixed format delivery system by prosecutors violates the States obligation to provide the defense “meaningful access” to copies of a hard drive. In State v Dingman, No. 34719-9-II consolidated with No. 35949-9-II, 2009 Wash. App. LEXIS 550 (Wash. App. Mar. 10, 2009), an appeals court in Washington counseled “against unduly restricting access to electronic evidence in criminal matters” and issued an order to “strike down the trial court's order requiring the defense to access the mirror image drives ‘only through the State's operating system and software.’”

The court reversed and remanded for a new trial, concluding that the trial court erred by requiring that the State provide only an EnCase mirror image of defendant’s hard drives to the defense because “the State must meet its burden of showing a need for appropriate restrictions before the trial court [could] limit a computer forensics expert's analysis of a defendant's hard drive to only the State's chosen software format.”

The key is, I believe, to be well versed in the FRCP provisions regarding e-Discovery and make strategic decisions on how to apply that knowledge to the specifics of your criminal case. Your needs will be much more limited than in a civil matter and may revolve around only one or two specific items within the EDRM workflow. The key is knowing what you want to do with technology to handle those specifics.

With that in mind, Russ suggested one other tip for handling a criminal defense matter: “When I am appointed by the Court to be the Coordinating Attorney on complex racketeering and fraud cases, my role is to coordinate the use of technology to support the defense teams and look for cost sharing opportunities. I start each case by asking: “What do you want to do with the technology?”

That simple premise has served us well in many cases.

Full article here.

1 comment:

sawebzone said...

Therefore glad I found your website searching for shoes.
This is great information at any given time when the internet is full
of falsehoods. Keep up the task in "Link to another good article from Allen Wright" and that i can
come back often.
We provide zealous representation for our clients from intake throughout trial. If you find yourself in need of legal representation, do not hesitate to contact our office Houston Criminal Defense Attorney