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Electronic Discovery in Criminal Cases

Office of the Federal Public Defender CJA Panel Training Jackson MS Nov. 13, 2009. Electronic Discovery in Criminal Cases. Background General Discussion Specific Case Example. AGENDA. Corporate crimes Securities fraud Bank fraud Wire fraud Racketeering Money laundering

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Electronic Discovery in Criminal Cases

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  1. Office of the Federal Public Defender CJA Panel Training Jackson MS Nov. 13, 2009 Electronic Discovery in Criminal Cases

  2. Background General Discussion Specific Case Example AGENDA

  3. Corporate crimes • Securities fraud • Bank fraud • Wire fraud • Racketeering • Money laundering • Prosecution of these cases can closely resemble the characteristics of a complex civil case. Government FOCUS

  4. Millions of pages of ESI from standard sources such as computers and PDA’s Hundreds of hours of wiretaps, body wires and surveillance video BUT The Brady rule (Brady v. Maryland, 373 U.S. 83 (1963),) requires that exculpatory evidence be provided to the defense The Jencks Act requires production of verbatim transcripts and other notes or documents related to testimony by government agents, employees or witnesses AND The request for production must be made by the defendant Required only AFTER the witnesses have testified Not generally available in pre-trial hearings. Discovery

  5. Discovery The result? document exchange between the parties in criminal cases is not the result of the negotiation that exists in civil cases. No litigation hold lettersno meet and confer, no motions over delivery formatA warrant is served without notice an agency seizes computers Processes the ESI provides defense counsel a copy of what they seized in a fixed format, typically EnCase or FTK.

  6. RUSS AOKI COMMENTS So what does this mean for the defense attorneys in these cases? Criminal cases are “on the clock” , with issues of speedy trial and defendants who are often in custody and want to get to trial as soon as possible.Attorneys are not always as tech savvy as their civil counterparts.Document review is difficult with in custody defendants who do not have access to computersCollaboration with co-counsel is difficult given a system that rewards defendants who cooperate with the governmentTechnology purchases are difficult because the judge must approve all expenditures. (more than 80% of criminal defendants in Federal court appear with court appointed counsel because they are indigent)

  7. “Unlike a complex civil case, criminal defense lawyers tend to be solo practitioners or from small law firms. The majority of criminal defense attorneys have few staff, if any and they must balance numerous cases that require far more frequent court appearances then in the civil justice system. To further increase the pressures on them, an immediate trial is mandated by the constitutional right to a speedy trial. A client who is unwilling to waive his right to a speedy trial requires the criminal defense attorney to use tools to review and organize discovery in a quick and effective manner.” SUMMARY

  8. FUTURE? incorporation of the FRCP provisions regarding e-discovery by criminal case judgesJudge Fasciola IN United States v. O’Keefe, 537 F. Supp. 2d 14, (D.D.C. 2008) State v Dingman, No. 34719-9-II consolidated with No. 35949-9-II, 2009 Wash. App. LEXIS 550 (Wash. App. Mar. 10, 2009) “fIxed format delivery system by prosecutors violates the States obligation to provide the defense “meaningful access” to copies of a hard drive.”

  9. TWO TIPS • RUSS • “When I am appointed by the Court to be the Coordinating Attorney on complex racketeering and fraud cases, my role is to coordinate the use of technology to support the defense teams and look for cost sharing opportunities. I start each case by asking: “What do you want to do with the technology?” • KNOW THE EDRM

  10. EDRM

  11. HELLS ANGELS CASE STUDY IPro Partner ConferencePhoenix May1-2 , 2008

  12. BACKGROUND • 2003 - Znetix case • 2005 - Tech Working Group • 2006 - Bandidos case • 2007- Hells Angels case

  13. THE PLAYERS COURT Trial Judge Magistrate Judge IT Staff DEFENSE U.S. ATTORNEY Defense attorneys Trial Attorneys Capital charge attorneys Consulting Attorneys Coordinating attorney Forensic Experts Technology Consultant Technology Staff Technology Staff

  14. THE PROBLEM • Multiple defendants • Most in custody • SHU • Multiple attorneys • CJA Panel • Limited budget • Not tech savvy

  15. THE PROBLEM • ISSUES • Volume of discovery • Complexity of discovery • E-Discovery • Audio • Video • Photographs • Physical evidence • Numbering

  16. THE CHALLENGES • DOCUMENT SHARING • Scan docs and share costs with USA • Share with each other • Multiple disks • Web program • Share with court • TRIAL • Trial Presentation • Hosting • Numbering Issues

  17. TIMELINE buried in paper CASE BEGINS lost motion blindsided the great unknown new issues TRIAL BEGINS

  18. SOLUTION • Scan with Ipro service bureau • Separate productions to each side • Ipro viewer for review • IPublish used by defense team for internal group distribution • Redaction • Copying • Distribution • IPro database as “Control” group

  19. OUTSOURCE • Service Bureaus • Scan • Number • Blowback • IT Consulting • Hosting • Trial Presentations • Training

  20. Thank You For Listening! Gulf Coast Technology Center www.gulfltc.org Tom O’Connor toconnor@gulfltc.org

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