August 10, 2009
Long gone or fading fast are the days when only bookmakers, Ponzi schemers, predatory mortgage brokers, insider traders, just to name a few, rely on the "paperwork" to carry on their daily business. The paperless world has come full circle. Not even "respectable law breakers" can get along without some sort of electronic communication device or computer.
Much to the chagrin of criminal lawyers who often lament, "Why did my client open his big mouth to the cops?" the criminal case has gone paperless. Criminal lawyers can now be heard advising their clients "Don't put anything in e-mail or on the Onternet unless you want the cops to read it!"
The landscape of criminal defendants too is changing rapidly. The white-collar defendant CEOs do not typically see themselves hanging with common criminals. They make their deals at the club or on the golf course. The problem is that the business that follows is memorialized in an electronic communication, and unknown to them, their business practices have caught the attention of the government. Welcome to 21st century communications.
Modern day communications, through e-mail, the Web, instant messaging, electronic faxing, and digital voicemail, expand the nature and location of "relevant evidence" as well as the obligations to obtain, preserve, produce and manage this evidence. There exists a rapidly emerging need for courts to uniformly recognize the increasing necessity for an accused to access electronically stored information, or ESI, in order to effectively build a defense in modern-day criminal prosecutions and the context in which the ESI was forensically ascertained may be as important to a defendant as the
context of the information recovered.
Free e-mail accounts like Yahoo!, Gmail and Hotmail, along with a competitive mobile communications market offering an affordable unification of services like e-mail, voice plans and data on a single handheld device expands the universe of the "forms" of evidence at issue - irrespective of whether the crime being prosecuted is "corporate" or "street" in nature. The landscape of criminal defendants is also changing rapidly.
ESI evidence can significantly impact the outcome of a client's civil or criminal case. E-discovery assumes a critical role unique to criminal proceedings. Unlike hard copy documents and tangible evidence (e.g., gun, picture, clothing, etc.), ESI may contain exculpatory evidence that may not be readily apparent to the prosecution that maintains custody and control over it. Additionally, the prosecution, improperly, may be in possession of ESI that should be subject of a motion to suppress. The prosecution should be aware that it may be in possession of discoverable material that may exculpate a defendant or affect the strength of the prosecutions case. The dynamic nature of ESI has the potential to develop into Brady material. Brady v. Maryland, 373 U.S. 83 (1963). Given that the government's obligations under Brady are not rooted in any particular constitutional right to discovery, but rather in the due process protections defendants are afforded in criminal proceedings, criminal lawyers must be on alert.
The greatest challenge may be ascertaining and obtaining electronic evidence in the possession of the prosecution. The defense must successfully convince the court that without full and appropriate pretrial disclosure and exchange of ESI, the defendant lacks the ability to mount a full and fair defense. Lawyers know that due process, as a general proposition, adapts to facts as they are presented in specific circumstances, and due process is a progressive principle that has been applied to mediums containing ESI, such as search warrants of computers and testimonial evidence residing on audiotapes. A defendant's rights must be expanded to accommodate contemporary applications. ESI discoverability should be governed by the same due process analysis courts have recognized. The obligation to make relevant evidence available to the accused or suppress its use when improperly obtained should be aggressively protected. Criminal defendants require reasonable access to ESI evidence sufficient for their counsel to capably advocate for the protection of their Fourth, Fifth and Sixth Amendment constitutional rights.
ESI evidence gives rise to financial concerns. The vast majority of criminal defendants are indigent, and thus, without funds to pay for costly electronic discovery. Their defense counsel could look to the court system for required funds. But the expense and burdensomeness of e-discovery should be balanced against the government's needs and the defendant's rights. Lawyers should be prepared to explain and judges should be aware of the problems and expenses potentially associated with ESI, so they would not "accidentally" issue a discovery order so general and overly broad to be unduly burdensome and costly.
Over the past decade, courts have attempted to have e-discovery keep pace with technological advances. In McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001), the court used a marginal utility approach to craft an order as to e-mails within a certain period that might contain relevant discovery, including requiring the producing party to pay the costs but keep an accounting. The parties and the court could then determine if the information yielded justified further discovery and how the production and associated costs were to be handled.
In Rowe Entertainment, Inc. v. the William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002), the party charged with production of e-mail stored on backup disks requested the court to issue a blanket protective order precluding such discovery due to costs. The court found no justification for a blanket protective order but did create and apply a protocol for cost-shifting.
The Rowe case was further addressed in Zubulake v. UBS Warbug, LLC, 217 F.R.D. 309 319 (S.D.N.Y. 2003). The plaintiff requested e-mails from the archival media, and the defendant, citing Rowe, claimed undue burden and expense and urged the court to shift the cost of production to the plaintiff. The court refrained from applying Rowe in a strict manner and noted that it might result in a disproportionate shifting away from large defendants. The court ultimately ordered a modified approach ordering partial discovery of the e-mail as selected by the plaintiff at the defendant's expense, and then parties would evaluate the search results to determine if further searching and expense was warranted.
Coordinating policies and procedures with technology is important today not only for prosecutorial agencies but also for corporate America. In the recent past, corporations have been ordered to preserve and produce, sometimes at considerable expense, computerized information, including e-mail messages, support systems, software, voice mail systems, computer storage media and backup tapes and telephone records. On Dec. 1, 2006, the federal courts responded to the growing demands and complexities of e-discovery by amending Federal Rules of Civil Procedure 16, 26, 33, 34, 37 and 45 to address discovery and ESI issues. Many states, including California, have begun to do the same, but the lack of resources still leave criminal defendants and corporate business in a difficult predicament.
The amended Federal Rules of Civil Procedure Rule 34(a) defines ESI as "other data or data compilations stored in any medium from which information can be obtained directly or, if necessary, after translation by the responding party into a reasonably usable form." Courts have applied the amended rules by requiring parties to a case, whether corporate or individual, to preserve, identify, disclose and produce, on pain of monetary and other sanctions, relevant information residing on any electronic device. What happens when relevant evidence suffers digital spoliation?
Federal Rules of Civil Procedure 37(e) provides a limited "safe harbor" from sanctions when the loss of electronically stored information as a result of the "routine, good faith operation of an electronic information system" occurs. Litigants must demonstrate they took reasonable steps to preserve in good faith evidence they knew or should have known to be relevant to litigation "reasonably anticipated" or commenced. Therefore, a party cannot evade the safe-harbor provision in an effort for ESI to self-destruct. The amended Federal Rules of Civil Procedure addresses digital spoliation by recognizing that it can occur in various ways and can result in varying penalties depending on 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? A criminal defendant's liberty is at stake. Spoliation of evidence could result in a dismissal of the criminal case.
This is a true conundrum for criminal trial lawyers, both defense and prosecution.
Maureen Duffy-Lewis is a Los Angeles Superior Court judge. She currently sits in Department 38 at the Stanley Mosk Civil Courthouse. Daniel B. Garrie is an e-discovery neutral and special master with Alternative Resolution Centers. He can be reached at 310-284-8224 or 800-347-4512. Daniel K. Gelb is a partner at Gelb and Gelb in Boston.