August 11, 2009
Conundrum or confusion is no excuse for a defendant's loss of liberty. The courts need to be on alert and criminal lawyers need to beware that the Federal Rules of Criminal Procedure do not afford criminal defendants an established right to access electronically stored information, or ESI, beyond the scope of Federal Rules of Criminal Procedure 16 (for evidence in the custody of the government) or Federal Rules of Criminal Procedure 17 (for evidence in the possession of third parties). The accused should argue that the spirit of the Federal Rules of Criminal Procedure provides criminal defendants with a constitutional right to access ESI in the possession, custody and control of the prosecution as third parties.
Generally, a criminal defendant is entitled to rather limited discovery, with no general right to obtain the statements of the government's witnesses before they have testified; and 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."
A critical concern is the imbalance of discovery rights between civil and criminal. Criminal defendants are potentially at risk of being denied access to exculpatory, mitigating or impeachment evidence that may be legitimate Brady material. Brady v. Maryland, 373 U.S. 83 (1963). The often overwhelming and daunting task of mounting a full and complete defense to a prosecutor's charges can result in a defendant pleading to criminal charges before ESI is completed. Criminal defendants' access to ESI varies from court to court on both the state and federal levels because of the lack of uniform rules governing it.
Many cases pursued by prosecutors are investigated in tandem with other governmental agencies (within the parameters of laws governing parallel proceedings) including Congress, which may be investigating potential civil or regulatory violations of federal laws (e.g., securities law, health care regulations, intellectual property guidelines, etc.). Absent common procedures among forums for the handling of ESI, there exists a risk to individual defendants when they produce ESI to the government in non-criminal proceedings. Many may produce ESI without knowing whether they are targets or witnesses in criminal actions. Defendants have a constitutional right to know exactly the nature and cause of the government's case, and when applied to a 21st century practice, it should include the production (or at the very least the inspection) of ESI. Therefore, defense counsel must be familiar with ESI, which is not apparent on the face of a document in electronic form (e.g. metadata, which is data about data). Most targets of a criminal investigation are not privy to information from intergovernmental-agency efforts, such as the government's motive in issuing administrative subpoenas when a target is unaware of a parallel proceeding. In U.S. v. Kordel, 397 U.S. 1 (1970), the U.S. Supreme Court made it clear that parallel investigations conducted by civil and criminal enforcement agencies must meet the requirements of the Fifth Amendment Due Process Clause. Kordel involved a corporate vice president who answered the government's interrogatories during a civil proceeding reproving allegedly misbranded products. Had the defendant-vice president been more informed, the defendant could have invoked his privilege against compulsory self-incrimination. Failing to do so, however, did not enable him to assert that he was compelled to give testimony against himself as ground for overturning a conviction for introducing misbranded drugs into interstate commerce (even if information supplied in answers provided evidence or leads useful to government in criminal prosecution). The court did find that "[i]t would stultify the enforcement of federal law" to limit the government's discretion to conduct dual investigations strategically, the court suggested that a defendant may be entitled to a remedy where "the [g]overnment has brought a civil action solely to obtain evidence for its criminal prosecution."
Corporate entities are creatures of the state and do not enjoy a Fifth Amendment privilege; however, their employees as individuals do, and counsel must be on the alert as to whether a defendant has an "act of production" privilege. See U.S. v. Doe, 465 U.S. 605 (1984), which held that contents of business records were not privileged, but the "act of producing" records was testimonial in nature and therefore privileged and could not be compelled by the government without a statutory grant of use immunity pursuant to 18 U.S.C. Sections 6002 and 6003. Kordel and Doe remain good benchmarks for present-day defendants confronting governmental agencies seeking e-discovery. Defendants should inquire, with the advice of their counsel, as to whether the forum the government or regulator is utilizing to obtain e-discovery is appropriate and that the parties have a common understanding as to the implication of production. Defendants must be wary as to whether the e-discovery being sought in one forum (e.g., regulatory or administrative) is a pretext for building a criminal prosecution that compromises a defendant's constitutional rights. Moreover, the protocol for handling ESI and the manner in which it was actually handled should be memorialized in the event contested issues arise.
Because technology has become inextricably tied to the way people communicate and therefore constitutes important evidence, criminal defendants will likely seek discovery of ESI (e.g., Facebook, YouTube, phone companies, etc.) from third parties as well as the government. Counsel who do not press the government effectively to produce ESI may deprive the client of an adequate defense. Counsel should also investigate all sources that may be available to clients for underwriting the expense of e-discovery (e.g. the advancement provisions of directors and officers insurance policy).
As the role of ESI becomes ever more central during pre and post-indictment proceedings, criminal defendants may need to rely on the resources of friends and relatives in order to retain computer forensic experts in addition to counsel. As for indigent clients, defense attorneys may have to petition for court-ordered funds. ESI may contain golden nuggets of information, and therefore, defendants who do not diligently pursue ESI on a level playing field with the prosecution may place their defense at risk.
E-discovery is fertile ground for motions to suppress. ESI is dynamic and can be fragile, so be aware that its mishandling may unlawfully interfere with a defense. Targets of criminal prosecutions should ascertain whether the government obtained evidence pursuant to a valid search warrant, especially when the government seizes ESI based on an affidavit that did not appropriately (or truthfully) describe the places to be searched and items to be seized from an information system.
The rapidly growing role of ESI in criminal prosecutions of all types, including the mortgage broker and the lowly bookmaker, is obvious. It requires that counsel be conversant with this type of evidence and how it could affect criminal proceedings. Otherwise, a criminal defendant may be deprived of effective assistance of counsel and who wants to be that lawyer? In civil proceedings, ESI is a cost issue. In criminal proceedings, failure to obtain ESI may result in the client's loss of liberty. Technology governs the way members of society communicate. The criminal justice system must adjust itself to the realities of 21st century discovery and the role of ESI, in order to ensure everyone gets a "fair shake at trial."
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.