Court Orders Government to Produce Electronic Data in Usable Form; Recognizes Need for E-Discovery Rules in Criminal Cases

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Affirming that issues concerning electronically stored information (ESI) are confined neither to civil matters nor private-party litigants, a federal district court this month ordered prosecutors to reproduce discovery in a reasonably useful format, mirroring the requirements of the Federal Rules of Civil Procedure.

Background: Difficulties with Discovery

In United States v. Briggs, et al., No. 10-CR-184S (W.D.N.Y.), the defendants were charged with conspiracy to distribute cocaine and money laundering. The investigation leading to the defendants' indictment involved interceptions of cellular telephone communications and, in discovery, the government provided defense counsel with "disks containing thousands of pages of documents" related to the investigation. See United States v. Briggs, 2011 WL 4017886, at *2 (W.D.N.Y. Sept. 8, 2011). The defendants argued to U.S. Magistrate Judge Hugh B. Scott that the data provided in discovery had “problems with omissions and inaccuracies" and they challenged "the failure of the Government to provide this call data in the most useful form that is readily available." Id. Specifically, the defendants claimed that they had "been presented with graphic images (TIFF files) that cannot be sorted or searched and lack[s] missing information (such as minimization data) that a ‘.pdf’ file . . . would have." Id. Defendants requested that the government be ordered to reproduce the discovery in a native or "text-accessible" format. Id.

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