DOJ Lays Down the Law on Criminal E-Discovery Protocols
Law Technology News
February 21, 2012
Image by skpy
Criminal law attorneys for the federal government received their own e-discovery protocol and training mission last week.
The government's Joint Electronic Technology Working Group, led by the Department of Justice, began developing a best practices guide for e-discovery in the fall of 2009. The 21-page documentincludes principles, specific recommendations, strategy tips, and a case checklist. It was revealed at a federal software summit in Washington on Feb. 10. Circulation began last week.
All of the department's 6,000 federal prosecutors will receive training based on the new document. The document will also be used by U.S. Attorneys, investigative agencies, judges, and various law enforcement divisions, explained Andrew Goldsmith, national criminal e-discovery coordinator.
"We've been working very hard over the past 18 months, and very closely with our counterparts in the Office of the Public Defender, as well as Criminal Justice Act appointees, to come up with this," Goldsmith said. "[Electronically stored information] was going to threaten to swallow prosecutors and defenders alike, and the judiciary for that matter."
"The way this thing was set up, the recommendations section would probably remain as it is for the foreseeble future. The strategy and commentary section would be much more organic ... as we start to road test it," Goldsmith explained, adding that attorneys are already submitting initial feedback and that he will give an update in April. "This is not going to be some document that people stick into their desk and forget about," he asserted.
The division is also figuring out how to use commercial e-discovery software, typically designed for civil matters, in its criminal cases. "There's nothing being written for criminal prosecutions and that's an issue. We're trying to get a round peg into a square hole," Goldsmith's assistant coordinator John Haried said at the recent conference, which was sponsored by Guidance Software. However, there are "These are mind-destroyingly complex problems," he quipped.
Haried acknowledged that most software companies focus on the civil side because criminal discovery is a far smaller market. It can only be used in four situations -- when information may clear a defendant, when a statement is easily disproved, when a witness' prior statement needs to be explored, and when investigations fall under criminal Rule 16 procedures, he noted.
Goldsmith said the department is trying its best to work with what's available. "What we're trying to do is explore best practices for gathering, managing, and presenting evidence electronically by using available off-the-shelf software," he said. He cited discovery software from iConect Development, IPRO Tech, and LexisNexis, and case software from CaseSoft and Sanction Solutions.
"In many attempts, criminal is attempting to customize what's done in civil," Goldsmith continued. In order to explore options, "[Haried] has been in contact with some of the manufacturers. But I think those are very much in the preliminary stages," and the department hopes to figure out its next steps soon, he said.
The criminal division still has much to learn about e-discovery, Goldsmith agreed, but it's come a long way from the late 1990s to mid-2000s -- when the electronics working group simply focused on how to scan paper documents.
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