September 11, 2012
In this five-part series on criminal e-discovery, I will look at the burdens, benefits, and federal rules surrounding the use of e-discovery in criminal proceedings. E-discovery is rapidly making headway in civil proceedings, but the criminal courts have not taken to digital evidence as quickly. This short series of articles will give insight to the current status of e-discovery in criminal proceedings as well as recent cases of interest.
In the last installment I looked at the history of defendant’s rights with regards to e-discovery. In this third article, I will discuss the changes in the Federal Rules of Civil Procedure and its impact on e-discovery in criminal cases.
Recently, corporations have preserved and produced, sometimes at considerable expense, computerized information, including: e-mail messages, support systems, software, voicemail systems, computer storage media, and backup tapes and telephone records. While this is common practice in civil cases, criminal e-discovery is a smaller market. Unlike civil cases with broad allowances for discovery, in criminal cases e-discovery is limited both by the Federal Rules of Criminal Procedure (Fed. R. Crim. Pro.) and by the nature of criminal cases (although this does not apply so much to financial crimes which typically involve an extensive paper trail).
On December 1, 2006, the federal courts responded to the growing demands and complexities of e-discovery by amending rules 16, 26, 33, 34, 37 and 45 of the Federal Rules of Civil Procedure (FRCP) to address e-discovery. Many states have begun to do the same, but a lack of resources leave criminal defendants in a difficult predicament.
The amended FRCP addresses digital spoliation by recognizing that it can occur in various ways, and will result in varying penalties depending upon the facts and legal context in which the claim arises. What recourse is available to a defendant whose rights are violated by the prosecution’s conduct contravening the “safe harbor” rules? Best case scenario, the spoliation of evidence could result in a dismissal of the criminal case. But counsel should keep in mind that a criminal defendant’s liberty is at stake.
Criminal lawyers should be aware that the Fed. R. Crim. P. do not afford criminal defendants an established right to access electronically stored information (ESI) beyond the scope of Fed. R. Crim. P. 16 or Fed. R. Crim. P. 17. Counsel for the defendant should argue that the spirit of the Fed. R. of Crim. P. provides criminal defendants with a constitutional right to access ESI in the possession, custody, or control of the prosecution as third parties.
Generally, a criminal defendant is entitled to a rather limited discovery, with no general right to obtain the statements of the government’s witnesses before they have testified. Additionally, it is not unreasonable to assume this principle would apply to items such as e-mail, text messages, and other forms of ESI. This does not seem just when in civil litigation, by contrast, a party is entitled, as a general matter, to discovery of any information sought if it is relevant and “reasonably calculated to lead to the discovery of admissible evidence.”
In the next installment, I will explore further the differences between criminal and civil discovery, and what these differences mean to defense counsel as well as the prosecution.