U.S. District Judge Xavier Rodriguez Former U.S. Magistrate Judge Ron Hedges Kiran Raj, Senior Counsel to the Deputy AG, U.S. Department of Justice Jeff

• U.S. District Judge Xavier Rodriguez • Former U.S. Magistrate Judge Ron Hedges• Kiran Raj, Senior Counsel to the Deputy AG,

U.S. Department of Justice• Jeff Shaffer, PwC

“What the Hell Is a Terabyte?” Or Conquering the Technical Challenges of E-Discovery Competently and Ethically

• Array of evidence –blogs, social media, etc. can support charges or defenses and call into question credibility and motives of witnesses

• Digital devices record information – what an individual was doing, whom they did it with, what the person was thinking

• Metadata includes details such as creation date, date of last modification, last access

• All this data potentially implicates proof of actions, identity, motive and conspiracy

ESI and criminal cases:

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• Cameras record faces and license plates• GPS chips, radio-frequency identification

(RFID) chips and sensors (phones, access badges, toll collection stations, OnStar, passports track and record movements

ESI and criminal cases:

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• ABA Model Rule of Professional Conduct 1.1

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Competence With Electronically Stored Information:What Does It Mean In the Context of Criminal Cases and How Can

Defense Counsel Achieve It?

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• Comment 8:• To maintain the requisite knowledge and

skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.



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• Defense Counsel should know what constitutes ESI and electronic locations where potentially relevant ESI can be found.

• Defense Counsel should be capable of investigating the potentially relevant sources of ESI in the possession, custody or control of the Government and law enforcement.

• In addition, Defense Counsel should assess the potentially relevant sources of ESI in the possession, custody and control of her client.

• An attorney should understand the right questions to pose, both to her client and the opposing party, as well as the information provided in response to those inquiries.



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• Preserve potentially relevant information when a government investigation is threatened, pending or can be reasonably anticipated, even though no subpoena has been issued

• Practical considerations

E-Discovery impact on corporations and corporate officials

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– Obstruction of justice provisions in Sarbanes-Oxley

– Failure to preserve may influence or shape the views of investigators and prosecutors about culpability

– Obstruction of justice enhancements may be applied in the sentencing

E-Discovery impact on corporations and corporate officials

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Fed. R. Crim. P. 16(a)(1)(E): Discovery and Inspection – Government's Disclosure – Information Subject to Disclosure – Documents and Objects.Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and:

(i) the item is material to preparing the defense;(ii) the government intends to use the item in its case-in-chief at trial; or(iii) the item was obtained from or belongs to the defendant.

Rule 16

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Fed. R. Crim. P. 16(b)(1)(A): Discovery and Inspection – Defendant's Disclosure – Information Subject to Disclosure – Documents and Objects.If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:

(i) the item is within the defendant's possession, custody, or control; and(ii) the defendant intends to use the item in the defendant's case-in-chief at trial.

Rule 16

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Government obligations comes into play:• Criminal Rule 16(a)• Brady• Giglio• Jencks ActDefendant’s obligations set forth in Rule 16(b)Possible remedies for failure to comply:

ESI IN CRIMINAL ACTIONSPOST-INDICTMENT

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• “order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions” (Rule 16(d)(2)(A))

• “grant a continuance” (Rule 16(d)(2)(B))• “prohibit that party from introducing the

undisclosed evidence” (Rule 16(d)(2)(C))• “enter any other order that is just under the

circumstances” (Rule 16(d)(2)(D))

ESI IN CRIMINAL ACTIONSPOST-INDICTMENT

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• In a case involving the FBI’s failure to preserve text messages, a court relying on the civil discovery rules, issued an adverse inference instruction that permitted the jury to infer that the missing text messages were relevant and favorable to the defendants. See U.S. v. Suarez, 2010 WL 4226524 (D. N.J. 2010).

Government’s obligation to preserve

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• Rule 16 “is entirely silent on the issue of the form that discovery must take; it contains no indication that documents must be organized or indexed.” U.S. v. Warshak, 621 F. 3d 266 (6th Cir. 2010).

Form of production

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• But see U.S. v. O’Keefe, 537 F. Supp. 2d 14 (D. D.C. 2008)(court held that document production by the government should adhere to Fed. R. Civ. P. 34 standards) and U.S. v. Briggs, 2011 WL 4017886 (W.D. N.Y. 2011)(applying FRCP 34 and Fed. R. Crim. P. 16(d) and ordering government to re-produce ESI in reasonably useable form or forms following a data dump; government was the party “better able to bear the burden of organizing these records”).

Form of production

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• In U.S. v. Skilling, 554 F. 3d 529 (5th Cir. 2009), the defendant argued that the government’s massive production of documents was a data dump that violated Brady’s obligations because it effectively suppressed exculpatory evidence. The Fifth Circuit disagreed noting this was not a data dump, the government’s open file production was electronic and searchable, the government produced a set of “hot documents”, and the government created and provided the defendant indices to these documents).

Brady issues and ESI

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• See also U.S. v. Lewis, 594 F. 3d 1270 (10th Cir. 2010) (defense not entitled to a govt created database which constitutes work product); U.S. v. Ohle, 2011 WL 651849 (S.D. N.Y. 2011)(govt produced several gigabytes of data; court stated that Brady “does not place any burden on the Government to conduct a defendant’s investigation or assist in the preparation of the defense’s case.”)

• But see U.S. v. Salyer, 271 F.R.D. 148 (E.D. Cal. 2010)(court ordered govt to specifically identify Rule 16, Brady and Giglio materials)

Brady issues and ESI

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• U.S. v. W.R. Grace (D. Mont. 2009)(midway during the cross-examination of a cooperating witness the defendant became aware of 200 emails exchanged between the cooperating witness and case agent; court instructed jury that the emails showed significant bias in the relationship between the witness and govt and animus towards the defendant)

• U.S. v. Malone, 49 F. 3d 393 (8th Cir. 1995) (emails between prosecutors and agents not discoverable; these were impressions of a witness’ interview not statements of the witness)

Email and text exchanges between cooperating witnesses and prosecution/law enforcement

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Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases, Joint Working Group on Electronic Discovery in the Criminal Justice System (“JETWG”) (Feb. 2012)• Contents:– Introduction– Recommendations– Strategy and Commentary on ESI Discovery in Federal

Criminal Cases– ESI Discovery Production Checklist

Discovery and exchange of ESI

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Prosecution and defense cooperation• For example, to avoid disputes as to the form or volume of

production• Compare United States v. Skilling, 554 F.3d 529 (5th Cir.

2009), vacated in part and remanded in part, 130 S. Ct. 2896 (2010) (production as “data dump”) with United States v. Rubin/Chambers, 825 F. Supp. 2d 451 (S.D.N.Y. 2011) (denying defense request that government reproduce ESI in categorized bunches as ESI was searchable and other steps were taken to relieve burdensomeness)

Discovery and exchange of ESI

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• U.S. v. Graham, 2008 WL 2098044 (S.D. Ohio 2008) (court dismissed indictment for Speedy Trial Act violation where govt was slow to produce millions of documents and other media)

• But see U.S. v. Qadri, 2010 WL 933752 (D. Hawaii 2010) (court denied motion to dismiss based on Speedy Trial Act; any delays were attributable to complexity – 30 computer hard drives and 3 servers)

Speedy Trial Issues and ESI

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United States v. Hernandez, 14 Cr. 499, 2014 WL 4510266 (S.D.N.Y. Sept. 12, 2014)• Court denies defendants’ motion for

appointment of Coordinating Defense Attorney (CDA)– “There are clear and obvious ethical and legal

issues implicated * * *”

Coordinating Discovery Attorney (CDA)

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Any stipulation should include:1. Defense counsel responsible for ensuring

everything received2. Defense counsel responsible for ensuring

everything loaded or accessible3. Defense counsel responsible for ensuring

all in form useful to clients4. Defense counsel responsible for tagging


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5. Defense counsel responsible for reviewing6. Defense counsel responsible for clients’

failures7. CDA assumes no responsibilities as

attorney8. CDA does not negotiate with government9. CDA’s communications not privileged


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• Fed. R. Evid. 104: Preliminary Questions on Admissibility

• Fed. R. Evid. 401: Test for Relevant Evidence• Fed. R. Evid. 901: Authenticating of Identifying

Evidence• Fed. R. Evid. 403: Excluding Relevant Evidence for

Prejudice, Confusion, Waste of Time, or Other Reasons

• Fed. R. Evid. 701: Opinion Testimony by Lay Witnesses

• Fed. R. Evid. 702: Testimony by Expert Witnesses

Admissibility

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• Parker v. State, No. 38, 2013, 2014 WL 621289 (Del. Sup. Ct. Feb. 5, 2014) (post on defendant’s social media page sufficiently authenticated through circumstantial evidence and victim testimony)

• Smith v. State, 136 So.3d 424 (Miss. 2014) (affirming conviction although social media messages and email notification erroneously admitted)

Admissibility

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• Commonwealth v. Grace, 84 Mass. App. Ct. 1136 (Feb. 19, 2014) (rejecting challenge to admission of text messages based on circumstantial evidence presented at trial)

Admissibility

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• In re Jovan A., 6 N.E.3d 760 (Ill. App. Ct. 2014) (reversing adjudication of delinquency; court below erred in admitting hearsay testimony on content of craigslist.org advertisement)

• United States v. Vayner, 769 F.3d 125 (2d Cir. 2014) (reversing conviction; social media page erroneously admitted)

Admissibility

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• Sublet v. State, 2015 WL 1826582 (Md. Ct. App. 2015) (first and most obvious method for authentication “would be to ask the purported creator if she indeed created the profile and also if she added the posting in question”. The second approach is to “search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.” The third of the non-exhaustive means of authentication is to “obtain information directly from the social networking website”, which would link together the profile and the entry to the person, or persons, who had created them.)

Admissibility