Justice Department, US courts and defense bar agree to implement e-discovery “Protocols”

It was inevitable. The drumbeats were getting too loud. The federal criminal courts were beckoning. Electronic information in criminal cases could no longer wait for rules.

ACFCS has obtained a landmark 21-page protocol, not yet publicly released, which brings e-discovery rules into the criminal realm for the first time.

The US Department of Justice, the federal courts and criminal defense bar have taken a major step to bring e-discovery into the criminal courtroom and in pretrial proceedings. The Justice Department prosecutes thousands of criminal cases each year for a wide range of crimes that are contained in various titles of the US Code, particularly Title 18, 26 and 31. The crimes range from arms trafficking to wire fraud and hundreds in between.

A new “Protocol,” issued earlier this week, has been negotiated for 18 months. It was produced by the Joint Electronic Technology Working Group (JETWG), which “was created to address best practices for the efficient and cost-effective management of post-indictment ESI discovery… in federal criminal cases”.

The JETWG is composed of representatives of the Justice Department, Administrative Office of the U.S. Courts, , Federal Defender Organizations, private attorneys who accept Criminal Justice Act (CJA) appointments, and liaisons from the United States Judiciary.

The “Protocol” delineates the electronic records that will be the subject of the e-discovery exchanges in criminal cases, as follows:

  • Investigative materials (investigative reports, surveillance records, criminal histories, etc.)
  • Witness statements (interview reports, transcripts of prior testimony, Jencks statements, etc.)
  • Documentation of tangible objects (e.g., records of seized items or forensic samples, search warrant returns, etc.)
  • Third parties’ ESI digital devices (computers, phones, hard drives, thumb drives, CDs, DVDs, cloud computing, etc., including forensic images)
  • Photographs and video/audio recordings (crime scene photos; photos of contraband, guns, money; surveillance recordings; surreptitious monitoring recordings; etc.)
  • Third party records and materials (including those seized, subpoenaed, and voluntarily disclosed)
  • Title III wire tap information (audio recordings, transcripts, line sheets, call reports, court documents, etc.)
  • Court records (affidavits, applications, and related documentation for search and arrest warrants, etc.)
  • Tests and examinations
  • Experts (reports and related information)
  • Immunity agreements, plea agreements, and similar materials
  • Discovery materials with special production considerations (such as child pornography; trade secrets; tax return information; etc.)
  • Related matters (state or local investigative materials, parallel proceedings materials, etc.)
  • Discovery materials available for inspection but not produced digitally
  • Other information

ACFCS is bringing this breaking landmark news to its members within hours of its receipt of the “Protocol,” and will provide more in-depth coverage in the following weeks.