A little over a year ago, the above authors wrote about the lack of clarity regarding the government’s production-format obligations for electronically stored information (ESI) in criminal cases.1 Although some guidance could then be gleaned from civil jurisprudence, opinions discussing criminal production standards were few, and there was virtually no guidance from the courts of the Second Circuit. Into that void, Magistrate Judge Hugh B. Scott of the Western District of New York recently issued United States v. Briggs, a decision “of first impression” for the district and the circuit.2 As discussed further below, Judge Scott not only required the government to reproduce electronic documents in a searchable format in the case before him, but also called for an amendment of Federal Criminal Procedure Rule 16, which governs discovery in federal criminal matters, to address the government’s electronic discovery obligations in the 21st century.3

Following this jurisprudential development, more recently a working group comprised of court representatives and attorneys from the government and private sector issued detailed guidance concerning appropriate forms of ESI production in criminal discovery. Together, these developments provide much-needed guidance on production format and related best practices, and signal movement towards resolving a current gap between ESI production standards in civil and criminal cases.

Call for Clarification of Obligations

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