E-Discovery is short for “electronic discovery.” Electronic discovery is the process by which lawyers obtain electronically stored information (ESI) for possible use as evidence in a criminal trial and share it with the opposing side in a criminal case. The law regarding e-discovery has developed as electronic communications have become used pervasively in our society.
Currently, a competent prosecuting attorney should recognize that items of electronically stored information might be used as evidence in a criminal trial and should know how to obtain them. Another aspect of e-discovery is the obligation each side has to share the information it has obtained with the other side.
In a criminal case, police and other law enforcement personnel can obtain electronically stored information for the prosecution. They must still comply with the U.S. Constitution and its requirements for the use of warrants to conduct searches of private property and seize evidence when it is located.
In addition, the government has a duty to preserve certain types of the evidence that it collects during criminal investigations. This duty exists in order to protect the promise of due process and a fair trial made by the 6th and 14th Amendments to the U.S. Constitution. The duty to preserve evidence begins as soon as the employee of a state or federal law enforcement agency has gathered the evidence in the course of a criminal investigation.
What Is the Difference between E-Discovery and E-Filing?
E-discovery is different from e-filing. E-filing involves using electronic systems to file documents with a court.
What Are Some Examples of Electronically Stored Information?
In general, electronically stored information can be obtained, or discovered, meaning that it can potentially be used as evidence in a criminal case. The rules of evidence constitute a body of law that is separate from the rules of discovery in criminal cases. Thus, the fact that a prosecutor can obtain some form of ESI does not necessarily mean that the item may be used as evidence in a trial. But its use as evidence is certainly a possibility.
The rules of criminal procedure provide a list of the items that are generally considered to be electronically stored information, or “ESI”. Examples of ESI that the attorneys in criminal cases commonly want to study and possibly use as evidence in criminal trials may include:
- Email correspondences;
- Text messages, chat records, and instant messages;
- Information posted on social network websites
- Video, image, and audio files;
- Spreadsheets, databases, and word processing files;
- Calendar files and appointment dates;
- Search histories and website activity;
- Voicemails and video messages;
- Computer programs.
Must All Electronically Stored Information Be Shared?
Any information that can be stored on a computer, cell phone or online may possibly be obtained by the parties in the criminal discovery process. It is important to keep in mind that not all of the information may end up as evidence at trial. However, any particular item may well be used as evidence. But all of it might be obtained and reviewed by the attorneys and their clients, although legal processes have to be used to obtain it.
Electronic information produced through social network websites are of special concern. Many people report private information on such websites, such as their whereabouts, their travels, and the activities in which they engage. This information may potentially be used as evidence in a court of law and may sometimes be damaging to a defendant’s case.
Federal courts have developed rules about discovery in criminal trials in federal courts. Specifically, Federal Rule of Evidence 16.1 states that within 14 days after a defendant has been arraigned in federal court, the attorney for the government, the prosecutor, and the attorney for the defendant must confer and try to agree on a schedule and procedures for the exchange of evidence before the trial.
If one of the attorneys is not satisfied with the schedule or procedures, or if the attorneys cannot agree on some point, then one or both of them may ask the court to determine or modify the schedule or the procedures for the exchange of discovery. The goal is for the parties to prepare for trial and not experience surprise when evidence is presented by one side or the other. These rules apply to ESI as well as to regular physical evidence or records of oral statements.
State courts may well have similar rules regarding criminal discovery and when the prosecution and defense must exchange material and what material must be provided by each side.
The prosecution must generally turn over to the defense items in their possession that are material to the case. Material information would be items in the possession of the prosecution, such as documents and other items that are relevant to developing a defense.
The most important obligation of the prosecutor, however, is a continuing duty to turn over to the defense evidence that is exculpatory. Exculpatory evidence is evidence that tends to show that the defendant is not guilty or has a defense. Or, it might suggest that there is some factor that mitigates the degree of the defendant’s guilt. In short, it is in some manner favorable to the defendant and it has to be provided to the defendant or their lawyer.
The following information, including ESI, is usually requested in the discovery request that a defendant gives to the prosecution:
- Any reports prepared by the police;
- The results of forensic analyses such as DNA analyses;
- Results of physical or mental examinations;
- Relevant evidence obtained during the criminal investigation. This is going to include any kind of evidence that has been stored electronically on computers or cell phones;
- Names and addresses of witnesses expected to be called at trial;
- Relevant witness or victim statements;
- Records of statements the defendant made to the police;
- Summaries of expected expert witness testimony;
- Sometimes, criminal records of witnesses and the defendant.
The defense also has a duty to reciprocate and provide the prosecution with material that it has obtained in the course of its own investigation. Typically, however, the defense does not have the same amount of information in its possession that the prosecution has.
The prosecution will usually ask the defense to turn over its witness lists, summaries of expected expert witness testimony, and test and exam results conducted by the defense. State law may also require the defense to notify the prosecution of any defenses it intends to raise, such as an alibi or self-defense.
When Must Electronically Stored Information Produced?
During the discovery process, all documents that are electronically stored must be turned over to the prosecution or opposing party based on an agreed-upon specification. Usually the parties agree to upload this information into a document review platform or portal that is accessible to both parties.
Do the Police Need a Warrant to Search My Email?
Again, all search and seizure law, both state and federal, applies during a criminal investigation, whether the material sought is electronic or not. For example, as a general rule, law enforcement must obtain a valid search warrant to search for and then seize ESI.
Recent U.S. Supreme Court cases have stressed the continuing need for law enforcement to get a warrant before seizing electronically stored information unless it can be seized pursuant to an exception to the warrant requirement. That is, the police must have reasonable suspicion that the ESI is somehow linked to criminal activity. ESI that has been seized without a warrant or with the justification of an exception to the warrant requirement will be excluded from evidence during trial.
Also, it should be noted that e-discovery law is different in criminal cases from discovery in civil claims. For example, a person who is working in a corporation may have their email seized by their employer even against their wishes. Constitutional search and seizure protections apply to government law enforcement agencies in criminal cases. They do not apply to private parties involved in civil litigation, such as employers who are seizing company information.
Should I Contact a Lawyer If I Have Issues with E-Discovery?
E-discovery has probably become commonplace in criminal cases. If you have issues regarding the e-discovery laws in your jurisdiction, it would be worth your while to consult with an experienced criminal defense lawyer.
A lawyer can inform you regarding the confidentiality of your electronically stored information. Also, an attorney can represent you in court proceedings if a court must become involved in e-discovery issues in your case.
