E-discovery in criminal cases: a need for specific rules.

Author:Game, Daniel B.

This article explores how issues concerning electronic evidence and discovery (e-discovery) and its associated electronically stored information (ESi) are not relegated to civil litigation, and that the subject matter has an equal impact on criminal litigation. The following suggests a rapidly growing need for courts to uniformly recognize the increasing necessity for an accused to access ESi in order to effectively build a defense in modern-day criminal prosecutions where the context in which the ESI was forensically ascertained may be as important to a defendant as the content of the information recovered.

Section I introduces the subject matter of e-discovery and ESi. Section ii addresses the manner in which civil litigation pioneered a judicial focus on codifying specific rules of civil procedure governing the pretrial exchange of e-discovery. Section iii delves into the manner in which the criminal justice system appears to be handling e-discovery in criminal matters. it further discusses an arguable disconnect between traditional rules of criminal procedure addressing pretrial discovery and the growing need for modernization of the rules in criminal proceedings to specifically direct parties on how to uniformly interact concerning ESi where such directions exist in civil litigation matters. (3) Moreover, Section IV addresses the concern that the status quo of e-discovery in criminal matters places parties that lack financial resources at a substantial disadvantage, as opposed to those who are able to retain legal counsel to navigate e-discovery issues. Section V discusses the constitutional implications surrounding e-discovery in criminal matters. Sections VI and VII discuss a proposal for a "balancing test" and possible pretrial discovery tools for the exchange of ESI beyond that which is contemplated in more traditional rules of criminal procedure currently followed by the courts.


    Criminal defense lawyers are as obligated as their civil law brethren to be conversant with electronic discovery and its various attendant forms of electronically stored information in order to effectively represent their clients. Modern day communications, through email, the Internet, instant messaging, electronic faxing, and digital voicemail, expand the nature and location of "relevant evidence" as well as the obligations to obtain, preserve, produce and manage this evidence.

    ESI evidence when handled properly, or if mishandled, can significantly impact the outcome of a client's civil or criminal case. Importantly, e-discovery assumes a critical role unique to criminal proceedings. unlike hard copy documents and tangible evidence (e.g., gun, picture, clothing, etc.), ESI may contain exculpatory evidence that may not be readily apparent to the prosecution, who maintains custody and control over the ESI. Additionally, the prosecution may improperly possess ESI that should be the subject of a motion to suppress. Finally, the dynamic nature of ESI has the potential to develop into Brady (4) material. The government's obligations under Brady are not rooted in any particular constitutional right to discovery, but rather in the due process protections defendants are afforded in criminal proceedings. (5)

    1. How to Obtain Electronic Evidence

      A significant issue many criminal defendants may encounter is ascertaining and obtaining electronic evidence in the possession of the prosecution. The greatest challenge may well lie in successfully convincing the court that the prosecution's approach to the pre-trial exchange of ESI will adversely impact the defendant's constitutional and procedural rights in building a full and fair defense to the government's charges. The expense and burden of e-discovery must be balanced against the potential of a criminal defendant losing one's liberty.

    2. What the Constitution Says About Electronic Discovery

      The United States Supreme Court primarily has grounded a defendant's rights to fairness in the criminal process on the defendant's right to invoke the protection of the Fifth Amendment. (6) Moreover, the Due Process Clause applies to each state via the Fourteenth Amendment of the Constitution, which "in effect affirms the right to trial according to the process and proceedings of the common law." (7)

      Due process, as a general proposition, adapts to facts as they are presented in specific circumstances, and is a progressive principle that has been applied to mediums containing ESI, such as search warrants of computers and testimonial evidence on audio tape. (8) Even though today's technological mediums did not exist when the Due Process Clause was codified, the judicial system has recognized that a defendant's rights must be expanded to accommodate contemporary applications. (9) Evidentiary forms like ESI should be governed by the same Due Process analysis courts have recognized in the past when considering new forms of evidence. The just obligation to make relevant evidence available to the accused or suppress its use when improperly obtained resides with the judicial system as the ultimate protector of a defendant's constitutional rights.

    3. The State of Criminal Electronic Discovery Today

      Unfortunately, the criminal justice system as of yet has not expanded the Federal Rules of Criminal Procedure in a manner which would ensure that criminal defendants receive reasonable access to ESI evidence sufficient for their counsel to advocate capably for the protection of their Fourth, (10) Fifth (11) and Sixth (12) Amendment rights. Further driving the need for the right electronic discovery rule framework is that, without a rule, the judicial systems risks collapse soon. Because the vast majority of criminal defendants are indigent, and thus, without funds to pay for costly electronic discovery, they could potentially bankrupt the judicial system. (13)


    The concept of "electronic" evidence is now commonplace in civil litigation. In fact, in 1970, the Federal Rules of Civil Procedure were amended to incorporate "data compilations" as discoverable items. (14) The Advisory Committee Notes for the 1970 amendments acknowledge that the intent of the revision was to bring the discovery process into accord with changing technology. (15) Over the past decade, there have been further attempts to keep e-discovery on pace with technological advances, as reflected in such cases as McPeek v. Ashcroft, (16) Rowe Entertainment, Inc. v. The William Morris Agency, Inc. (17) and Zubulake v. UBS Warburg, LLC. (18) These cases have led to corporations being ordered to preserve and "produce, sometimes at considerable expense, computerized information, including email messages, support systems, software, voicemail systems, computer storage media and backup tapes and telephone records." (19) on December 1, 2006, the federal courts responded to the growing demands and complexities of e-discovery by amending the Federal Rules of Civil Procedure to address discovery and ESI issues. (20)

    1. The Definition of Electronic Stored Information under the Civil Rules

      The amended Federal Rules of Civil Procedure defined ESI and set out a series of requirements for parties to identify ESI at the start of litigation. Specifically, amended Rule 34(a) defines ESI as "other data or data compilations ... stored in any medium from which information can be obtained directly or, if necessary, after translation by the responding party into a reasonably usable form." (21) Courts have applied the amended rules by requiring both corporate and individual parties to preserve, (22) identify, (23) disclose, (24) and produce, (25) on pain of monetary and other sanctions, relevant information on any electronic device.

    2. Doctrine of Safe Harbor and Spoliation

      The amended Federal Rules of Civil Procedure also recognized a limited safe harbor from sanctions arising from the loss of electronically stored information as a result of the "routine, good faith operation of an electronic information system." (26) However, the application of this rule requires that the producing litigant demonstrate (27) that it tried to preserve in good faith evidence it knew or should have known to be relevant to reasonably anticipated or commenced litigation. (28) In addition, the amended rules address digital spoliation (29) by recognizing that it can occur in various ways and result in varying penalties depending upon the facts and legal context in which the claim arises. (30)

    3. Shifting Costly Electronic Discovery in Civil Litigation

      While cost has always been a discovery concern, the advent of "e-discovery" has raised such concerns to a high level, especially when ESI impacts the manner in which a case may proceed. (31) Since 1970, courts have struggled to integrate the highly variable cost structure associated with producing ESI into the Federal Rules of Civil Procedure's (32) traditional discovery principles. (33) Electronic discovery consultant fees can typically start at $275 per hour and costs of collecting, reviewing and producing a single email can be between $2.70 and $4 per document. (34) Experts in this market estimated that in 2007, litigants would spend more than $2.4 billion on electronic discovery services and there is no end in sight to this growth. only two years later, this expense had increased. (35)

      The construct of proportionality respective to discovery requests is gaining traction with the courts. Judges and lawyers alike realize that discovery costs (36) can be determinative of a litigant's decision to litigate or settle a case. (37)


    In the federal criminal justice system, there is no landmark case or rule which operates as a counterpart to the Federal Rules of Civil Procedure on e-discovery. (38) There are examples, such as United States v. O'Keefe, (39) where the federal judiciary addressed the developing influence the Federal Rules of...

To continue reading