Prosecutions in both state and federal court now routinely make use of digital evidence. Take, for example, the internet search history proof offered by the government in its case against Casey Anthony.[FOOTNOTE 1] And it is not just the government that is using digital evidence. Note the defense’s effective use of text messages between FBI agents and their key cooperating witness — in which they discussed (among other topics) their race and sexual preferences — to undermine the government’s case in United States v. Amaro Goncalves, 09 CR 335 (RJL), last month’s much-watched Foreign Corrupt Practices Act prosecution.[FOOTNOTE 2] Despite these trends, until recently there has been a dearth of guidance relating to electronically stored information in federal criminal cases.
By comparison to federal civil litigation — which has for years benefitted from a developed body of case law and procedural rules specifically addressing ESI issues — criminal ESI discovery practice has remained largely without any formal guidance. That changed on Feb. 13, 2012, when the Joint Electronic Technology Working Group (JETWG) formally issued its Recommendations for ESI Discovery in Federal Criminal Cases (“Recommendations”).
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