E-Discovery and Use of Digital Evidence

Rule 16 of the Federal Rules of Criminal Procedure is the primary means by which defense attorneys can force the government to disclose the electronically stored information (ESI) they need. Oftentimes the government will produce ESI in a format that is not searchable. Moreover, the government may not reveal the name of the software needed to review the discovery. The defense team should bring DOJ-approved recommendations concerning ESI to the judge’s attention so that it can obtain the discovery it needs. Pursuant to recommendations by the Joint Working Group on Electronic Technology in the Criminal Justice System, the defense should consider requesting a “meet and confer” session with the government to discuss (1) what ESI is available, (2) in what format it will be produced, and (3) when it will be produced.