MANAGING DIGITAL DISCOVERY IN CRIMINAL CASES.

• Author: Turner, Jenia I.

1. Introduction 239 II. Expanding Digital Evidence in Criminal Cases 244 III. Background Discovery Requirements 246 IV. The Challenges of Digital Discovery in Criminal Cases 249 A. Storage and Processing Costs 249 B. Reviewing the Evidence 254 1. Reviewing Relevant Evidence 254 2. Searching for Brady Evidence 256 C. Protecting Privacy, Confidentiality, and Safety 259 D. Obtaining Evidence from Third Parties 260 E. Providing Digital Discovery to Detained Defendants 264 V. Negotiating Criminal Discovery in the Digital Age 266 A. Negotiation Practice 266 B. Cooperation Incentives 270 1. Prosecutorial Incentives 272 2. Defense Incentives 276 C. The Limits of Cooperation 278 VI. Regulating Digital Discovery in Criminal Cases 279 A. Lessons from Civil Procedure 280 1. Promoting Cooperation Between the Parties 281 2. Encouraging Judicial Management 282 3. Drafting Detailed Rules 286 B. The Limits of the Civil Procedure Model 288 C. Regulation of Digital Discovery Tailored for Criminal Cases 296 1. Promoting Cooperation Between the Parties 296 2. Encouraging Judicial Management 299 3. Employing Judicial Adjuncts 303 4. Drafting Detailed Rules 306 5. Investing in Training and Technology 308 VII. Conclusion 310 I. INTRODUCTION

   The burdens and challenges of discovery--especially electronic discovery--are usually associated with civil cases. Yet this is beginning to change: Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions. (1)

   Digital evidence in criminal cases is exploding. More and more crimes, from theft to drug trafficking to child pornography, are committed in cyberspace. (2) Smartphones, digital devices, and programmable home appliances have become central to our daily lives, and the evidence they generate is increasingly used in the prosecution and defense of criminal cases. (3) Law enforcement is also proactively using advanced technology to prevent and investigate crime, and these efforts result in digital evidence. (4)

   As electronically stored information (ESI) in criminal cases expands, its processing, disclosure, and review present novel problems for the prosecution and the defense. How will the terabytes of evidence be stored? (5) Who should bear the cost of formatting digital evidence to make it searchable? (6) When digital files of wiretap recordings and video surveillance are not searchable, should the prosecution be required to categorize or index them? (7) Should the prosecution be required to identify exculpatory evidence within a gargantuan ESI production? (8) How will metadata and sensitive information be handled? (9) How should access to digital discovery be provided to defendants who are detained before trial? (10)

   A growing number of criminal cases present these questions and more. The lack of time, resources, and expertise to process and review voluminous digital evidence (especially on the defense side) is leading to disputes about which party bears the burden of searching for relevant and potentially exculpatory documents. (11) With respect to sensitive documents (which might contain items such as child pornography, information that may endanger witnesses, and confidential documents), the parties must determine what type of access complies with the discovery rules while safeguarding important public interests. (12) Third-party possession of relevant evidence may also complicate discovery, particularly for defendants, because they have limited means of obtaining digital evidence from non-parties. (13) Finally, cases where defendants are detained raise special problems because inmates have limited or no access to electronic evidence in jail and thus have difficulty assisting their attorneys in preparing an effective defense. (14)

   The lack of clear legal rules adds to the difficulty. Rules of criminal procedure are typically silent on digital discovery, and case law is scant and varies greatly from one court to the next. (15) Practitioners are therefore left to devise solutions on an ad hoc basis, through informal discussions and negotiations. (16)

   After analyzing these problems, the Article advances three claims about the future of criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of ESI. Second, cooperation between the parties will not be sufficient to address the serious challenges that digital discovery presents to the fair and accurate resolution of criminal cases. And third, for that reason, digital discovery in criminal cases needs to be regulated more closely. In crafting regulation, courts and legislators can build on the civil procedure model of electronic discovery, while recognizing the differences between civil and criminal cases and tailoring new rules accordingly.

   As the volume of ESI in criminal cases expands, defense attorneys and prosecutors will feel greater pressure to cooperate and negotiate about discovery. Decisions in cases with massive digital evidence already reference informal agreements between the parties to tailor the scope of discovery and to assist the defense with ESI processing. (17) The presence of ESI is changing the parties' incentives and leading them to shift from a largely adversarial to a more collaborative approach to discovery. (18)

   Collaboration in electronic discovery (e-discovery) is already heavily encouraged in complex civil cases. As ESI has proliferated over the last two decades, both the rules of civil procedure and judicial decisions have promoted consultation and negotiation between parties about e-discovery. (19 )Initial evidence suggests that, when cooperation occurs, it reduces the costs of e-discovery and is well-received by the litigants. (20) Accordingly, the civil procedure model can offer useful guidance for reforming digital discovery in criminal cases. (21)

   In fact, the Advisory Committee on Criminal Rules, which recently considered the challenges of digital evidence in criminal cases, took note of the civil procedure experience and opted to encourage greater cooperation between the parties. The Committee approved a new draft rule of criminal procedure, Rule 16.1, which expressly requires the prosecution and the defense to meet and confer about pretrial disclosure shortly after arraignment. (22) Should negotiation between the parties fail, the parties "may ask the court to determine or modify the timing, manner, or other aspects of disclosure to facilitate preparation for trial." (23)

   Such efforts to promote cooperation are an important first step, but are not sufficient to address the serious challenges of digital discovery in criminal cases. (24) Cooperation will fail to yield results where the volume of evidence overwhelms one or both of the parties. (25) Negotiations between the parties can also lead to unfair results, especially because the standard criminal case features disparities between the defense and prosecution in terms of resources, investigative powers, and bargaining leverage. (26 )Furthermore, because prosecutors and defense attorneys are likely to differ in their willingness to bargain, negotiations are also likely to lead to disparate results in similarly situated cases. To avoid these negative consequences of negotiated digital discovery, stricter regulation of the process is needed.

   As courts and legislators consider suitable regulation for e-discovery in criminal cases, they can look to the civil experience for helpful insights on managing the challenges of digital evidence. While promoting cooperation, legislators should also draft more detailed rules to guide ediscovery where cooperation fails. (27) Judges should become more active in managing the discovery process and should involve magistrates in the effort. (28)

   At the same time, policymakers must adjust the civil model to meet the unique practical demands and legal environment of criminal cases. (29) The lack of resources in criminal cases--especially on the defense side--will demand the reallocation of criminal justice budgets and the creation of specialized infrastructure to ensure that digital discovery does not produce unfair and unjust outcomes. (30) The more robust constitutional protections in criminal cases--including the rights to due process, speedy trial, and effective counsel--may require greater judicial involvement in ensuring that digital discovery proceeds fairly. To ensure such fairness, judges need to take into account the special difficulties detained defendants face in accessing computers (31) and the hurdles that criminal defense attorneys experience in gathering digital evidence from third parties. (32) Courts must also recognize the vastly unequal bargaining powers of the prosecution and defense and limit negotiated waivers of critical discovery rights to prevent abuse. (33) Finally, courts and legislators need to draft clearer background rules about digital discovery to enhance predictability, promote consistent treatment across cases, and reduce disputes about digital discovery.

   In the more distant future, technological innovation may help the criminal justice system solve many of the problems that plague discovery of voluminous digital evidence today. Until then, the parties can ease some of the difficulties of digital discovery by cooperating with each other. But where cooperation fails or reflects vastly unequal bargaining powers, rules and judicial decisions must provide a backstop. Tailored regulation of e-discovery in criminal cases is needed to ensure that the novel problems posed by digital evidence do not undermine the fairness, accuracy, and transparency that discovery rules were designed to ensure.

2. EXPANDING DIGITAL EVIDENCE IN CRIMINAL CASES

   Information technology has become ubiquitous. As it permeates our daily lives, it also leaves digital footprints that can...