New Jersey takes lead in e-discovery.

• Position: PRIVACY

New Jersey is blazing the trail to address e-discovery issues in criminal cases at the state level.

The New Jersey Supreme Court Special Committee on Discovery in Criminal and Quasi-Criminal Matters recently submitted recommendations and proposed changes to court rules for e-discovery in state criminal cases.

The proposed changes address many of the same core themes addressed in the federally issued "Recommendations for Electronically Stored Information Discovery Production in Federal Crime Cases" (see article on page 6), but takes it to the next level. If approved by the state supreme court, these will be the first such rules at the state or federal levels for criminal cases.

Many of the issues identified by the committee are addressed in the U.S. Federal Rules of Civil Procedure, including software incompatibility and prohibitive discovery fees. The recommendations deal primarily with the exchange of discovery that has been converted to electronic formats, such as transcripts and taped witness statements. It only touches lightly on preservation, collection, review, and culling processes that are normally associated with civil litigation.

In short, the New Jersey rules would require prosecutors and defense counsel to "meet and confer." Attorneys would be required to familiarize...