The Electronically Stored Information Protocol: ediscovery in Federal Criminal Cases

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Today s Speakers John Haried, Esq. John Haried is the Assistant National Criminal Discovery Coordinator for the U.S. Department of Justice, working on discovery training and policy for federal prosecutors and investigative agents, as well as electronic case information management. He has been an Assistant United States Attorney in Colorado for 21 years, a state prosecutor for 8 years, and a civil litigator in private practice. He has been President of the Executive Counsel of the Colorado Bar Association s Criminal Law Section, and he is a member of the Colorado Supreme Court s Standing Committee on the Rules of Professional Conduct. ESI in Criminal Cases 4

Today s Speakers Allison Walton, Esq. Allison Walton is an ediscovery Attorney with Symantec Corporation. Allison is also an active member of the 7 th Circuit e-discovery Pilot Program and in the ediscovery community nationwide. She consults with corporate legal departments and outside counsel to develop efficient, scalable processes and cost-saving strategies for the archiving, classification, collection, review and storage of email and other electronic data. The solutions offered are designed to meet or exceed the requirements imposed under recent revisions to the FRE and FRCP and to minimize legal risk. Her experiences across a wide spectrum of legal support businesses arms her with the insight needed to craft cost-effective litigation strategies and understand fully the concerns corporations are facing with regard to ESI and its explosive and unorganized nature in relation to the FRCP. ESI in Criminal Cases 5 5

1 Understanding the System 2 How and Why the Recommendations Came to Be 3 Anticipated Impact in the Courtroom and Cases 4 Resources and Reference Material ESI in Criminal Cases 6 6

ESI in Criminal Cases 7

Joint Electronic Technology Working Group (JETWG) Established in 1998 by the Director of the Administrative Office of the U.S. Courts and the Attorney General Consists of Reps from: AOUSC Office of Defender Services Department of Justice Federal Defender Organizations Private Attorneys who accept the Criminal Justice Act ESI in Criminal Cases 8 8

Purpose of Protocol The primary purpose of the Protocol is to facilitate best practices for post-indictment ediscovery with: predictable cost-effective efficient management of electronic discovery reduce the number of disputes relating to ESI The protocol provides a mechanism, through a meet and confer process, to: address problems a receiving party might have with an ESI production early in a case, to discuss the form of the discovery that the party receives ESI in Criminal Cases 10 10

Principles 1. Knowledge/Competency 2. ediscovery Liaison 3. Meet & Confer to Mirror FRCP 4. Formats 5. Burden of Production Format 6. Court Notification of Issues 7. Transmission of ESI 8. Multi-defendant- ediscovery Liaison Coordinator 9. Good Faith Resolution and Judicial Resolution Last Resort 10. Limited Access to ESI and Security 11. ESI Checklist ESI in Criminal Cases 11 11

U.S. v. Briggs, No. 10CR184S (W.D.N.Y. September 8, 2011). [A]s technology becomes more prevalent, the Government and defendants will come to produce more and more ESI (as the original source for evidence, such as in crimes involving computers, or as a means to compile evidence) along with other, traditional forms of discovery. - Judge Scott ESI in Criminal Cases 13

Government's Obligations in Criminal Cases: Rule 16 Brady Giglio Jencks Skilling production ESI in Criminal Cases 14

The way this thing was set up, the recommendations section would probably remain as it is for the foreseeable future. The strategy and commentary section would be much more organic... as we start to road test it. This is not going to be some document that people stick into their desk and forget about. Andrew Goldsmith, National Criminal ediscovery coordinator in LTN with Evan Koblentz ESI in Criminal Cases 15

How do the new guidelines address the issue of asymmetric nature of most criminal litigation? Collection Preservation Identification Search - terms, methodology and testing ESI in Criminal Cases 16

1. PROTOCOL http://pdfserver.amlaw.com/legaltechnology/usdoj_intro_recomme ndations_esi_discovery.pdf 2. SHIRA SCHEINDLIN S COMMENTS http://www.law.com/jsp/lawtechnologynews/pubarticlefriendlyltn.js p?id=1202543936045&slreturn=1 3. BRIGGS CASE http://scholar.google.com/scholar_case?case=1363253371976233887 6&hl=en&lr=lang_en&as_sdt=2,33&as_vis=1&oi=scholaralrt&ct=alrt&c d=0 4. ediscovery blog http://www.clearwellsystems.com/e-discovery-blog/ ESI in Criminal Cases 18

Questions? ESI in Criminal Cases 19

Thank you! John Haried, Assistant National Criminal Discovery DOJ Allison Walton, ediscovery Counsel, Symantec Corp. Email: allison_walton@symantec.com Twitter: @alliwalt ESI in Criminal Cases 20