E-Discovery In A Criminal Setting

Posted by Gregg Mayer on Thursday, February 28th, 2008   

The Federal Rules of Civil Procedure (”FRCP”) only govern civil proceedings.  Criminal cases have their own set of procedural rules.  Occassionally, however, a federal judge overseeing a criminal case comes across an unusual aspect of procedure and turns to the FRCP for guidance.   This happened recently with an e-Discovery issue in a criminal case.

In United States v. O’Keefe, the defendant, an employee of the Department of State in Canada, is charged with receiving gifts for expediting visa requests for his co-defendant. As part of the criminal case, the government was ordered to search its electronic files for relevant evidence.

O’Keefe complained that the government’s e-Discovery disclosures were inadequate. Specifically, O’Keefe argued the government did not specify what process it used to preserve ESI, did not disclose metadata, and did not use the correct search terms in retrieving ESI for the case.

In the court’s Feb. 18, 2008 opinion, the judge noted that since there was no criminal rule of procedure governing ESI, the court would look to the Federal Rules of Civil Procedure:

In criminal cases, there is unfortunately no rule to which the courts can look for guidance in determining whether the production of documents by the government has been in a form or format that is appropriate. This may be because the “big paper” case is the exception rather than the rule in criminal cases. Be that as it may, Rule 34 of the Federal Rules of Civil Procedure speak specifically to the form of production…It is foolish to disregard [the rules] merely because this is a criminal case, particularly where, as is the case here, it is far better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raises the same problems.

I. Preservation Of Government’s ESI 

Utilizing the FRCP, the court looked to the rationale of the FRCP 37(e) – the “safe harbor” provision – to reject O’Keefe’s argument that the government failed to preserve ESI.

The court explained that the government could not be liable for destroying ESI as part of its good faith, routine operation. The government’s ESI retention policy provided for ESI to be put on backup tapes for two weeks, and then those tapes would be reused. No other backup archive existed. The government enforced this policy. As explained in the opinion:

The government’s destruction of evidence pursuant to a neutral policy and without any evidence of bad faith does not violate the due process clause if the evidence was destroyed before the defendants raised the possibility that it was exculpatory and the government had no objective reason to believe that it was exculpatory.

This principle finds its analogue in the Federal Rules of Civil Procedure, which indicate that, absent exceptional circumstances, sanctions will not be awarded for a party’s failure “to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed. R. Civ. P. 37(e).

Consequently, unless O’Keefe could offer specific evidence that the government destroyed ESI it was “obliged to preserve,” then there was no claim for failure to preserve ESI.

II. Metadata 

On the metadata argument, the court explained that the government appeared to have complied with the FRCP.  The government disclosed the ESI as PDF or TIF images.  O’Keefe had not specifically requested the ESI in its native format with metadata.  As a result, the government’s production in PDF or TIF was appropriate unless there was a specific reason the metadata was needed. The court explained:

Under Rule 34 of the Federal Rules of Civil Procedure, a distinction between documents and electronically stored information is made in terms of the form of production. As established above, a party is obliged to either produce documents as they are kept in the usual course of business or it “must organize and label them to correspond to the categories in the request.” Fed.R.Civ.P. 34(b)(E)(i). But if, as occurred here, electronically-stored information is demanded but the request does not specify a form of production, the responding party must produce the electronically-stored information in the form in which it is ordinarily maintained or in a reasonably usable form or forms. Fed.R.Civ.P. 34(b)(E)(ii). Additionally, a party “need not produce the same electronically stored information in more than one form.” Fed.R.Civ.P. 34(b)(E)(iii).

If one were to apply these rules to this case, it appears that the government’s production of the electronically stored information in PDF or TIFF format would suffice, unless defendants can show that those formats are not “reasonably usable” and that the native format, with accompanying metadata, meet the criteria of “reasonably usable” whereas the PDF or TIFF formats do not.

However, the opinion noted that the government seemed willing to re-disclose the ESI with metadata after O’Keefe complained. If for some reason that did not work out, the judge wrote that O’Keefe should file a motion to compel – a legal maneuver where one party requests the court force another party to do something.  If a motion to compel was filed, the court would then decide whether the government needed to disclose metadata.

III. Search Terms 

Last, the court rejected O’Keefe’s arguments pertaining to the search terms used unless O’Keefe could offer more specific arguments about why they were deficient.  The court explained:

Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics…Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.

O’Keefe illustrates the expanding use of ESI in the courtroom. Moreover, O’Keefe highlights the importance of a routine retention policy. When followed, that policy may preclude sanctions during litigation, even in a criminal setting.

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