Migrated from eDJGroupInc.com. Author: Greg Harris. Published: 2012-02-27 21:00:58Format, images and links may no longer function correctly. Are you facing a federal subpoena? The Joint Electronic Technology Working Group (JETWG) recently published a framework for handling eDiscovery in federal criminal cases “where the volume and/or nature of the ESI produced as discovery significantly increases the complexity of the case.” The framework is broken across three parts: recommendations, strategies and a checklist. The recommendations section gives an overview of the framework, and the strategies document provides a more detailed narrative. The checklist is simply a one page document that guides the user through the framework to ensure all the items have been addressed.
The JEWTG based the recommendations and strategies on 10 principles. The first two principles relate to the competence of the people working on the case. Specifically, attorneys “have a responsibility to have an adequate understanding of” ediscovery, and both “parties should include individuals with sufficient technical knowledge and experience” with eDiscovery. No further instruction is given for these principles in the recommendations or strategy documents.
Principle three deals with the meet and confer process in which the parties should discuss the “nature, volume and mechanics” of producing electronic evidence. The recommendations document summarizes the meet and confer process, and states that parties should consider meeting throughout the case in order to coordinate efforts. The strategy document covers the meet and confer process in detail. In fact, this section comprises one-third of the thirteen-page document, and touches on nineteen items that should be considered during the meet and confer. These items range from whether or not to convert proprietary data to a generic format, to the need for special accommodations that allow incarcerated defendants to review evidence.
The forth principle addresses the formats that will be used to produce evidence, and the need for those formats to maintain the integrity of the original evidence. The recommendations document states that producing parties “should not be required to take on substantial additional processing or format conversion costs […] beyond what the party has already done or would do […]” The document goes on to state that evidence should be produced in a manner that “save[s] the receiving party the expense of replicating the work.” In short, the parties should work to find a middle ground on the format for production. The strategy document gives methodologies for producing evidence in formats ranging from paper converted to digital format and forensic images, to witness interviews and video recordings. Principle five reiterates the idea that producing parties should not be required to go above and beyond their standard process.
Principle six calls out the recommendation that, subsequent to the meet and confer, the parties notify the court of any foreseen issues, limitations or problems with production. The seventh principle states that the parties should decide how to transmit the data, and find a method that will “promote efficiency, security and reduced costs.” The recommendations document goes on to suggest that parties should label the evidence, and keep a log of what was transmitted. The strategy document gives points on transmitting and tracking evidence.
Principle eight discusses cases with multiple defendants, and the benefit of having a single-point of contact. The idea is that one attorney can act as a “coordinator” for the collective defense, thereby streamlining the communication channel with the prosecution.
Principle nine suggests that parties make “good faith efforts […] to resolve disputes” before involving the judge. The recommendations document gives a few tips on handling disputes, and going through a supervisory attorney.
Finally, the tenth principle covers need to know. Parties should minimize the dissemination of evidence by only granting access to people who have a need to know, and are authorized to view the data. Furthermore, parties should “take reasonable and appropriate measures to secure” evidence, and prevent disclosure.
As stated in the recommendations document, every case is different, and “no single approach to [eDiscovery] is suited to all cases.” However, this framework is an excellent resource that we can all use to as a general guideline in our discovery efforts.
eDiscoveryJournal Contributor – Greg Harris