E-Discovery in Government Investigations and Criminal Law JOLT Symposium February 22,

Key Topics for Discussion ESI and Investigations The Bill of Rights and ESI Post-Indictment Discovery The Fifth Amendment Social Media 2

Subpoenas The duty to preserve can come before the subpoena – 18 U.S.C. § 1519 (“in contemplation of”); 18 U.S.C. § 1512(c) – U.S. v. Suarez, 2010 WL (D.N.J. Oct. 19, 2010) (adverse inference sanction for deletion of text messages between FBI agents and cooperating witness). Spoliation may be potential crime in and of itself and be used to prove consciousness of guilt for underlying crimes. – Indictment of Kolon Industries, Inc. for obstruction of justice, in addition to conspiracy and trade-secret-theft counts, as a result of conduct undertaken in a private civil case. Discussions with government – identify and avoid problems. 3

Digital Evidence Search Warrants Collision between Fourth Amendment’s particularity requirement, plain view doctrine, and search and seizure of digital evidence where every file could potentially contain evidence identified in warrant Over seizure creates risk of general warrant 4

Search Warrant Delays How long can the government wait to search the seized ESI? U.S. v. Metter, No. 10-CR-600 (DLI), 2012 WL (E.D.N.Y. May 17, 2012), while a delay of several months could be reasonable, a 15 month delay determined to be unreasonable – (“government's retention of all imaged electronic documents, including personal s, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.”). 5

U.S v. Jones – “Unanimous” Decision 9-0 decision that the actions of the government were a search. But that’s all that was unanimous… 6

Warrantless Searches of Cell Phones Raises special concerns outside of traditional search incident to arrest No longer small containers in pockets; libraries of information 7

Recommendations for ESI Discovery in Federal Criminal Cases issued by the Joint Electronic Technology Working Group (JETWG). 8 The New Criminal ESI Protocol

JETWG Recommendations for ESI Discovery in Federal Criminal Cases Collaborative agreement between DOJ, FPD, and CJA providing recommendations for ESI in federal criminal cases Promotes consistency, predictability, and dialogue Meet and confer Production Brady implications 9

Post-Indictment Discovery – Brady U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009) – No Brady violation for “open file” production of massive volume of ESI. – Gov’t provided searchable electronic “open file”, a set of “hot documents” and indices to “hot documents.” No evidence of bad faith or that Government padded “open file” with superfluous information. U.S. v. Salyer, 2010 WL (E.D. Cal. 2010) – Gov’t ordered to search for and identify Brady/Giglio material. – Gov’t should have been identifying such material during 5-year investigation. – If this was impossible for the Gov’t it is even more impossible for the defense to do so in matter of months. 10

Post-Indictment Discovery – Brady U.S. v. Warshak, 631 F.3d 266 (6th 2010) – Rule 16 contains no indication that documents must be organized or indexed. – Defendant’s own documents at stake; had access to those documents for 2.5 years; inventory provided; ESI was reasonably searchable. U.S. v. Farkas, No (4th Cir., May 16, 2012) – No abuse of discretion when court refused to grant defendant more time to review 59 million pages for exculpatory evidence. 11

Fifth Amendment – Compelled Access to Encrypted Computer Information? U.S. v. Doe, 11th Circuit – Providing encryption information testimonial? – Suspect could not be required to decrypt computer hard drives 12

Social Media Unique preservation, collection and discovery challenges Government’s statutory authority to access social media/ESI v. defendant’s lack of authority Ethical limits on gathering of social media 13

Social Media (cont) Social media at trial – Jury venire research – Ethical limitations New trial ordered for failure to disclose Skype communications. U.S. v. Stirling, No (S.D. Fla. June 6, 2012) – Juror use of social media. Erickson Dimas-Martinez v. State of Arkansas, 2011 Ark. 515 (2011) (juror tweets overturned conviction) – Authenticating social media evidence 14

Questions? 15