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6.
Production of ESI Discovery
Production of ESI discovery involves varied considerations depending upon the ESI’s source,
nature, and format. Unlike certain civil cases, in criminal cases the parties generally are not the original
custodian or source of the ESI they produce in discovery. The ESI gathered by the parties during their
investigations may be affected or limited by many factors, including the original custodian’s or source’s
information technology systems, data management practices, and resources; the party’s understanding
of the case at the time of collection; and other factors. Likewise, the electronic formats used by the
parties for producing ESI discovery may be affected or limited by several factors, including the source of
the ESI; the format(s) in which the ESI was originally obtained; and the party’s legal discovery
obligations, which may vary with the nature of the material. The Strategies and Checklist provide
detailed recommendations on production of ESI discovery.
General recommendations for the production of ESI discovery are:
a.
The parties should discuss what formats of production are possible and appropriate, and
what formats can be generated. Any format selected for producing discovery should, if
possible, conform to industry standards for the format.
4
b.
ESI received from third parties should be produced in the format(s) it was received or in
a reasonably usable format(s). ESI from the government’s or defendant’s business
records should be produced in the format(s) in which it was maintained or in a
reasonably usable format(s).
c.
Discoverable ESI generated by the government or defense during the course of their
investigations (e.g., investigative reports, witness interviews, demonstrative exhibits,
etc.) may be handled differently than in 6(a) and (b) above because the parties’ legal
discovery obligations and practices vary according to the nature of the material, the
applicable law, evolving legal standards, the parties’ policies, and the parties’ evolving
technological capabilities.
d.
When producing ESI discovery, a party should not be required to take on substantial
additional processing or format conversion costs and burdens beyond what the party
has already done or would do for its own case preparation or discovery production. For
example, the producing party need not convert ESI from one format to another or
undertake additional processing of ESI beyond what is required to satisfy its legal
disclosure obligations. If the receiving party desires ESI in a condition different from
what the producing party intends to produce, the parties should discuss what is
reasonable in terms of expense and mechanics, who will bear the burden of any
additional cost or work, and how to protect the producing party’s work product or
privileged information. Nonetheless, with the understanding that in certain instances
the results of processing ESI may constitute work product not subject to discovery, these
An example of “format of production” might be TIFF images, OCR text files, and load files created for a
4
specific software application. Another “format of production” would be native file production, which
would accommodate files with unique issues, such as spreadsheets with formulas and databases. ESI in
a particular case might warrant more than one format of production depending upon the nature of the
ESI.
Recommendations, Page 3
42
recommendations operate on the general principle that where a producing party elects
to engage in processing of ESI, the results of that processing should, unless they
constitute work product, be produced in discovery along with the underlying ESI so as to
save the receiving party the expense of replicating the work.
7.
Transmitting ESI Discovery
The parties should discuss transmission methods and media that promote efficiency, security,
and reduce costs. In conjunction with ESI transmission, the producing party should provide a general
description and maintain a record of what was transmitted. Any media should be clearly labeled. The
Strategies and Checklist contain detailed recommendations on transmission of ESI discovery, including
the potential use of email to transmit ESI.
8.
Coordinating Discovery Attorney
In cases involving multiple defendants, the defendants should authorize one or more counsel to
act as the discovery coordinator(s) or seek the appointment of a Coordinating Discovery Attorney and
5
authorize that person to accept, on behalf of all defense counsel, the ESI discovery produced by the
government. Generally, the format of production should be the same for all defendants, but the parties
should be sensitive to different needs and interests in multiple defendant cases.
9.
Informal Resolution of ESI Discovery Matters
a.
Before filing any motion addressing an ESI discovery issue, the moving party should
confer with opposing counsel in a good-faith effort to resolve the dispute. If resolution
of the dispute requires technical knowledge, the parties should involve individuals with
sufficient knowledge to understand the technical issues, clearly communicate the
problem(s) leading to the dispute, and either implement a proposed resolution or
explain why a proposed resolution will not solve the dispute.
b.
The Discovery Coordinator within each U.S. Attorney’s Office should be consulted in
cases presenting substantial issues or disputes.
Coordinating Discovery Attorneys (CDA) are AOUSC contracted attorneys who have technological
5
knowledge and experience, resources, and staff to effectively manage complex ESI in multiple defendant
cases. The CDAs may be appointed by the court to provide in-depth and significant hands-on assistance
to CJA panel attorneys and FDO staff in selected multiple-defendant cases that require technology and
document management assistance. They can serve as a primary point of contact for the U.S. Attorneys
Office to discuss ESI production issues for all defendants, resulting in lower overall case costs for the
parties. If a panel attorney or FDO is interested in utilizing the services of the CDA, they should contact
the National Litigation Support Administrator or Assistant National Litigation Support Administrator for
the Office of Defender Services at 510-637-3500.
Recommendations, Page 4
41
c.
To avoid unnecessary litigation, prosecutors and Federal Defender Offices should
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institute procedures that require line prosecutors and defenders (1) to consult with a
supervisory attorney before filing a motion seeking judicial resolution of an ESI discovery
dispute, and (2) to obtain authorization from a supervisory attorney before suggesting in
a pleading that opposing counsel has engaged in any misconduct, abuse, or neglect
concerning production of ESI.
d.
Any motion addressing a discovery dispute concerning ESI production should include a
statement of counsel for the moving party relating that after consultation with the
attorney for the opposing party the parties have been unable to resolve the dispute
without court action.
10.
Security: Protecting Sensitive ESI Discovery from Unauthorized Access or Disclosure
Criminal case discovery entails certain responsibilities for all parties in the careful handling of a
variety of sensitive information, for example, grand jury material, the defendant’s records, witness
identifying information, information about informants, information subject to court protective orders,
confidential personal or business information, and privileged information. With ESI discovery, those
responsibilities are increased because ESI is easily reproduced and disseminated, and unauthorized
access or disclosure could, in certain circumstances, endanger witness safety; adversely affect national
security or homeland security; leak information to adverse parties in civil suits; compromise privacy,
trade secrets, or classified, tax return, or proprietary information; or prejudice the fair administration of
justice. The parties’ willingness to produce early, accessible, and usable ESI discovery will be enhanced
by safeguards that protect sensitive information from unauthorized access or disclosure.
All parties should limit dissemination of ESI discovery to members of their litigation team who
need and are approved for access. They should also take reasonable and appropriate measures to
secure ESI discovery against unauthorized access or disclosure.
During the initial meet and confer and before ESI discovery is produced, the parties should
discuss whether there is confidential, private or sensitive information in any ESI discovery they will be
providing. If such information will be disclosed, then the parties should discuss how the recipients will
prevent unauthorized access to, or disclosure of, that ESI discovery, and, absent agreement on
appropriate security, the producing party should seek a protective order from the court addressing
management of the particular ESI at issue. The producing party has the burden to raise the issue anew if
it has concerns about any ESI discovery it will provide in subsequent productions. The parties may
choose to have standing agreements so that their practices for managing ESI discovery are not discussed
in each case. The Strategies contains additional guidance in sections 5(f), 5(p), and 7(e).
For private attorneys appointed under the Criminal Justice Act (CJA), this subsection (c) is not
6
applicable.
Recommendations, Page 5
42
Strategies and Commentary
on ESI Discovery in Federal Criminal Cases
1.
Purpose
This commentary contains strategies for implementing the ESI discovery Recommendations and
specific technical guidance. Over time it will be modified in light of experience and changing technology.
Definitions of common ESI terms are provided in paragraph 11, below.
2.
Scope of ESI Gathered
In order to promote efficiency and avoid unnecessary costs, when gathering ESI the parties
should take into consideration the nature, volume, and mechanics of managing ESI.
3.
Limitations
Nothing contained herein creates any rights or privileges for any party.
4.
Technical Knowledge and Experience
No additional commentary.
5.
Planning for ESI Discovery Production - The Meet and Confer Process
To promote efficient ESI discovery, the parties may find it useful to discuss the following:
a.
ESI discovery produced. The parties should discuss the ESI being produced according to
the following general categories:
i.
Investigative materials (investigative reports, surveillance records, criminal
histories, etc.)
ii.
Witness statements (interview reports, transcripts of prior testimony, Jencks
statements, etc.)
iii.
Documentation of tangible objects (e.g., records of seized items or forensic
samples, search warrant returns, etc.)
iv.
Third parties’ ESI digital devices (computers, phones, hard drives, thumb drives,
CDs, DVDs, cloud computing, etc., including forensic images)
v.
Photographs and video/audio recordings (crime scene photos; photos of
contraband, guns, money; surveillance recordings; surreptitious monitoring
recordings; etc.)
vi.
Third party records and materials (including those seized, subpoenaed, and
voluntarily disclosed)
53
vii.
Title III wire tap information (audio recordings, transcripts, line sheets, call
reports, court documents, etc.)
viii.
Court records (affidavits, applications, and related documentation for search
and arrest warrants, etc.)
ix.
Tests and examinations
x.
Experts (reports and related information)
xi.
Immunity agreements, plea agreements, and similar materials
xii.
Discovery materials with special production considerations (such as child
pornography; trade secrets; tax return information; etc.)
xiii.
Related matters (state or local investigative materials, parallel proceedings
materials, etc.)
xiv.
Discovery materials available for inspection but not produced digitally
xv.
Other information
b.
Table of contents. If the producing party has not created a table of contents prior to
commencing ESI discovery production, it should consider creating one describing the
general categories of information available as ESI discovery. In complex discovery cases,
a table of contents to the available discovery materials can help expedite the opposing
party’s review of discovery, promote early settlement, and avoid discovery disputes,
unnecessary expense, and undue delay. Because no single table of contents is
1
appropriate for every case, the producing party may devise a table of contents that is
suited to the materials it provides in discovery, its resources, and other considerations.
2
c.
Forms of production. The producing party should consider how discoverable materials
were provided to it or maintained by the source (e.g., paper or electronic), whether it
has converted any materials to a digital format that can be used by the opposing party
without disclosing the producing party’s work product, and how those factors may affect
the production of discovery materials in electronic formats. For particularized guidance
see paragraph 6, below. The parties should be flexible in their application of the concept
See, e.g., U.S. v. Skilling, 554 F.3d 529, 577 (5 Cir. 2009) (no Brady violation where government
1
th
disclosed several hundred million page database with searchable files and produced set of hot
documents and indices).
A table of contents is intended to be a general, high-level guide to the categories of ESI discovery.
2
Because a table of contents may not be detailed, complete, or free of errors, the parties still have the
responsibility to review the ESI discovery produced. With ESI, particular content usually can be located
using available electronic search tools. There are many ways to construct a general table of contents.
For example, a table of contents could be a folder structure as set forth above in paragraph 2(a)(i-xv),
where like items are placed into folders.
Strategies, Page 2
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