Over the past decade, judicial guidance has proliferated regarding electronic discovery obligations for civil litigants. What has been less clear is whether the same obligations and standards apply to government agencies in the context of criminal investigations and prosecutions.
Recent decisions indicate that, despite the narrower scope of pretrial criminal discovery, the government may well be held to the same high standards of preservation and production of electronically stored information (ESI). This emerging trend has strategic implications for the criminal defense bar when requesting discovery from, and defending against claims brought by, government agencies.
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