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The Effects of the Newly Published E-Discovery Protocol on Federal Criminal Cases

Created on April 26, 2012

Vice President, E-Discovery


When most people talk about e-discovery, it's discussed in the context of civil litigation. But with the creation of a new e-discovery protocol regulating e-discovery behavior in federal criminal legal matters, civil law's long-lost counterpart, criminal law, can no longer be neglected when it comes to e-discovery. Officially titled, “Recommendations for ESI Discovery Production in Federal Criminal Cases," the protocol is designed to address the emerging problem that electronically stored information (ESI) presents in criminal cases (e.g., social media, email, etc.).

As the protocol states below there are numerous opportunities to streamline the e-discovery process and more effectively utilize resources.

“The advent of electronically stored information (ESI) presents an opportunity for greater efficiency and cost savings for the entire criminal justice system, which is especially important for the representation of indigent defendants. To realize those benefits and to avoid undue cost, disruption and delay, criminal practitioners must educate themselves and employ best practices for managing ESI discovery."

If the recent arrest of a former BP engineer for spoliation of evidence is any indication, the emerging ESI issues surrounding e-discovery in accordance with criminal and regulatory investigations are growing. Following are some key highlights and takeaways from the protocol:

  • Meet & Confer: Similar to the civil system's FRCP 26(f) conference, a new proceeding will be used to proactively address problems a receiving party might have with ESI production. Essentially, this provides a mechanism for cost reductions by promoting formal cooperation between sides.
  • Production Formatting: Production of ESI must be produced in a readily usable format to the requesting party.
  • Secure Transmission of ESI: Parties must protect ESI from being spoliated in the transmission process between parties.
Who does this affect?
  • Government Agencies: The Department of Justice (DOJ), which currently employs approximately 6,000 attorneys in the U.S.
  • In-House Legal Departments: Global 2,000 corporations subject to DOJ/governmental investigations
  • Outside Counsel: Law firms that specialize in DOJ/governmental investigations with a focus on criminal activities
How can technology help?

Some of the more robust software platforms, most notably Exterro®, are delivering advanced features and analytics for driving down the costs and risks of e-discovery. Benefits include:

  • Reduced Data Volumes: Automatic culling of ESI during collection through de-duplication and de-nisting. Early access to case details, such as time frames, potential data volumes, relevant search terms and data ranges, can streamline processes, decreasing data volumes by 60-90% and radically lower outsourced review costs (if required).
  • Repurposed Data Collections and Work Product: Reuse of ESI and work product in later stages of e-discovery, eliminating the need to re-collect or re-review in current or related matters.
  • Production Format Flexibility: Ability to easily produce ESI in any required format.
  • ESI Security: Dissemination of ESI limited to only those who are approved for access. Built-in workflows and dashboards prevent unauthorized access or disclosure.
E-Discovery Beat's takeaway

Attorneys in government agencies and those protecting clients in criminal investigations are being instructed to implement processes in accordance with this new protocol, signaling a shift towards more cost-conscious, efficient e-discovery practices in the criminal justice system. To read the entire document, click here.

To learn more about the most current e-discovery regulatory and case law advancements, register for Exterro's upcoming webcast, “E-Discovery Case Law Wake-Up Call: No regrets, just lessons learned…" here.

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on, Twitter and Linkedin.