Presentation is loading. Please wait.

Presentation is loading. Please wait.

ELECTRONIC DISCOVERY IN CRIMINAL CASES Office of the Federal Public Defender CJA Panel Training Jackson MS Nov. 13, 2009 Office of the Federal Public Defender.

Similar presentations


Presentation on theme: "ELECTRONIC DISCOVERY IN CRIMINAL CASES Office of the Federal Public Defender CJA Panel Training Jackson MS Nov. 13, 2009 Office of the Federal Public Defender."— Presentation transcript:

1 ELECTRONIC DISCOVERY IN CRIMINAL CASES Office of the Federal Public Defender CJA Panel Training Jackson MS Nov. 13, 2009 Office of the Federal Public Defender CJA Panel Training Jackson MS Nov. 13, 2009

2 AGENDA Background General Discussion Specific Case Example Background General Discussion Specific Case Example

3 GOVERNMENT FOCUS Corporate crimes Securities fraud Bank fraud Wire fraud Racketeering Money laundering Prosecution of these cases can closely resemble the characteristics of a complex civil case.

4 DISCOVERY Millions of pages of ESI from standard sources such as computers and PDAs Hundreds of hours of wiretaps, body wires and surveillance video BUT The Brady rule (Brady v. Maryland, 373 U.S. 83 (1963),) requires that exculpatory evidence be provided to the defense The Jencks Act requires production of verbatim transcripts and other notes or documents related to testimony by government agents, employees or witnesses AND The request for production must be made by the defendant Required only AFTER the witnesses have testified Not generally available in pre-trial hearings. Millions of pages of ESI from standard sources such as computers and PDAs Hundreds of hours of wiretaps, body wires and surveillance video BUT The Brady rule (Brady v. Maryland, 373 U.S. 83 (1963),) requires that exculpatory evidence be provided to the defense The Jencks Act requires production of verbatim transcripts and other notes or documents related to testimony by government agents, employees or witnesses AND The request for production must be made by the defendant Required only AFTER the witnesses have testified Not generally available in pre-trial hearings.

5 THE RESULT? DOCUMENT EXCHANGE BETWEEN THE PARTIES IN CRIMINAL CASES IS NOT THE RESULT OF THE NEGOTIATION THAT EXISTS IN CIVIL CASES. NO LITIGATION HOLD LETTERS NO MEET AND CONFER, NO MOTIONS OVER DELIVERY FORMAT A WARRANT IS SERVED WITHOUT NOTICE AN AGENCY SEIZES COMPUTERS PROCESSES THE ESI PROVIDES DEFENSE COUNSEL A COPY OF WHAT THEY SEIZED IN A FIXED FORMAT, TYPICALLY ENCASE OR FTK. DISCOVERY

6 SO WHAT DOES THIS MEAN FOR THE DEFENSE ATTORNEYS IN THESE CASES? CRIMINAL CASES ARE ON THE CLOCK, WITH ISSUES OF SPEEDY TRIAL AND DEFENDANTS WHO ARE OFTEN IN CUSTODY AND WANT TO GET TO TRIAL AS SOON AS POSSIBLE. ATTORNEYS ARE NOT ALWAYS AS TECH SAVVY AS THEIR CIVIL COUNTERPARTS. DOCUMENT REVIEW IS DIFFICULT WITH IN CUSTODY DEFENDANTS WHO DO NOT HAVE ACCESS TO COMPUTERS COLLABORATION WITH CO-COUNSEL IS DIFFICULT GIVEN A SYSTEM THAT REWARDS DEFENDANTS WHO COOPERATE WITH THE GOVERNMENT TECHNOLOGY PURCHASES ARE DIFFICULT BECAUSE THE JUDGE MUST APPROVE ALL EXPENDITURES. (MORE THAN 80% OF CRIMINAL DEFENDANTS IN FEDERAL COURT APPEAR WITH COURT APPOINTED COUNSEL BECAUSE THEY ARE INDIGENT) RUSS AOKI COMMENTS

7 Unlike a complex civil case, criminal defense lawyers tend to be solo practitioners or from small law firms. The majority of criminal defense attorneys have few staff, if any and they must balance numerous cases that require far more frequent court appearances then in the civil justice system. To further increase the pressures on them, an immediate trial is mandated by the constitutional right to a speedy trial. A client who is unwilling to waive his right to a speedy trial requires the criminal defense attorney to use tools to review and organize discovery in a quick and effective manner. SUMMARY

8 INCORPORATION OF THE FRCP PROVISIONS REGARDING E-DISCOVERY BY CRIMINAL CASE JUDGES JUDGE FASCIOLA IN UNITED STATES V. OKEEFE, 537 F. SUPP. 2D 14, (D.D.C. 2008) STATE V DINGMAN, NO. 34719-9-II CONSOLIDATED WITH NO. 35949-9-II, 2009 WASH. APP. LEXIS 550 (WASH. APP. MAR. 10, 2009) FIXED FORMAT DELIVERY SYSTEM BY PROSECUTORS VIOLATES THE STATES OBLIGATION TO PROVIDE THE DEFENSE MEANINGFUL ACCESS TO COPIES OF A HARD DRIVE. FUTURE?

9 TWO TIPS RUSS When I am appointed by the Court to be the Coordinating Attorney on complex racketeering and fraud cases, my role is to coordinate the use of technology to support the defense teams and look for cost sharing opportunities. I start each case by asking: What do you want to do with the technology? KNOW THE EDRM

10 EDRM

11 HELLS ANGELS CASE STUDY IPro Partner Conference Phoenix May1-2, 2008

12 BACKGROUND 2003 - Znetix case 2005 - Tech Working Group 2006 - Bandidos case 2007- Hells Angels case 2003 - Znetix case 2005 - Tech Working Group 2006 - Bandidos case 2007- Hells Angels case

13 THE PLAYERS COURT Trial Judge Magistrate Judge IT Staff DEFENSEU.S. ATTORNEY Defense attorneys Trial Attorneys Capital charge attorneys Consulting Attorneys Coordinating attorney Forensic Experts Technology Consultant Technology Staff Technology Staff COURT Trial Judge Magistrate Judge IT Staff DEFENSEU.S. ATTORNEY Defense attorneys Trial Attorneys Capital charge attorneys Consulting Attorneys Coordinating attorney Forensic Experts Technology Consultant Technology Staff Technology Staff

14 THE PROBLEM Multiple defendants Most in custody SHU Multiple attorneys CJA Panel Limited budget Not tech savvy Multiple defendants Most in custody SHU Multiple attorneys CJA Panel Limited budget Not tech savvy

15 THE PROBLEM ISSUES Volume of discovery Complexity of discovery E-Discovery Audio Video Photographs Physical evidence Numbering

16 THE CHALLENGES DOCUMENT SHARING Scan docs and share costs with USA Share with each other Multiple disks Web program Share with court TRIAL Trial Presentation Hosting Numbering Issues DOCUMENT SHARING Scan docs and share costs with USA Share with each other Multiple disks Web program Share with court TRIAL Trial Presentation Hosting Numbering Issues

17 TIMELINE TRIAL BEGINS CASE BEGINS blindsided new issues buried in paper lost motion the great unknown

18 SOLUTION Scan with Ipro service bureau Separate productions to each side Ipro viewer for review IPublish used by defense team for internal group distribution Redaction Copying Distribution IPro database as Control group Scan with Ipro service bureau Separate productions to each side Ipro viewer for review IPublish used by defense team for internal group distribution Redaction Copying Distribution IPro database as Control group

19 OUTSOURCE Service Bureaus Scan Number Blowback IT Consulting Hosting Trial Presentations Training Service Bureaus Scan Number Blowback IT Consulting Hosting Trial Presentations Training

20 Thank You For Listening! Gulf Coast Technology Center www.gulfltc.org Tom OConnor toconnor@gulfltc.org Gulf Coast Technology Center www.gulfltc.org Tom OConnor toconnor@gulfltc.org


Download ppt "ELECTRONIC DISCOVERY IN CRIMINAL CASES Office of the Federal Public Defender CJA Panel Training Jackson MS Nov. 13, 2009 Office of the Federal Public Defender."

Similar presentations


Ads by Google