Federal courts scuffle in face of digital information overload

Department of Justice develops 10 recommendations for using electronically storted data

Digital information overload isn't just for large companies, apparently the Federal court system is having issues with it too. 

This week the Department of Justice and the court's Administrative Office (AO)  jointly developed a set of recommendations aimed at easing what it calls one of the most challenging aspects of its work: wading through  "electronically stored information (ESI)" for the discovery or evidence gathering phase of a court case. ESI can include everything from writing, drawings and charts to photographs, e-mail, voice-mail and computer file folders. 

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 "An expansion in the amount of digital data, the number of devices on which it can be created and stored, and the declining cost of storing such information have resulted in the increased presence of ESI in federal criminal litigation," said Theodore Lidz, the AO's Assistant Director for the Office of Defender Services in a statement. "Often the amount of information ranges from tens of thousands to millions of pages. While difficult to quantify, the expectation is that use of the recommendations will limit overall criminal justice discovery costs, reduce the number of discovery disputes, and shorten the time for processing complex cases."

The Recommendations for Electronically Stored Information Discovery Production were sent by the deputy attorney general to all U.S. attorney offices, and by the AO to all federal defenders and Criminal Justice Act attorneys.  From the court, the recommendations include:

  • Lawyers have a responsibility to have an adequate understanding of electronic discovery.
  • In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.
  • At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an ongoing dialogue may be helpful.
  • The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI's integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry format standards.
  • When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.
  • Following the "meet and confer," the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.
  • The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.
  • In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a coordinating discovery attorney.
  • The parties should make good-faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
  • All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

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