Increasingly, criminal lawyers like their civil counterparts are faced with legal and practical problems flowing from the potential enormity of the electronically stored information (ESI) involved in discovery. Earlier this year, the Department of Justice and the Federal Defenders attempted to alleviate or at least address some of these problems by issuing a set of recommendations for discovery of ESI in criminal cases. The document, sometimes referred to as “the protocol,” is the first of its kind and has the potential to change for the better the way post-indictment discovery is handled in criminal litigation involving high volumes of digital data. Such change, however, will require practitioners to seize the opportunity the protocol represents by becoming familiar with it, treating it seriously as a discovery framework and educating opposing counsel and courts about it.
Although the protocol states that its violation “may not serve as a basis for allegations of misconduct or claims for relief,” it currently is the closest thing that the criminal bar has to rules regarding the conduct of electronic discovery, something attorneys and courts alike have been increasingly calling for in recent years. Accordingly, the protocol or some future version of it could become a crucial document for criminal practitioners, influencing the contours of all federal criminal litigation, particularly in the document-intensive realm of white-collar offenses.
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