Court Orders Government to Reproduce ESI, Discusses Need for Criminal Rules Addressing Electronic Discovery

United States v. Briggs, No. 10CR184S, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011)

Defendants were charged with several counts related to the distribution of cocaine.  In its disclosures, the Government produced thousands of pages of documents as well as audio recordings, none of which were text searchable.  Defendants sought reproduction.  Noting the lack of relevant criminal rules and discussing the requirements of Fed. R. Civ. P. 34, the court relied upon its inherent authority to order reproduction in native format or in a PDF format “suitable for searching.”

In its voluntary discovery, the Government produced disks “containing thousands of pages of documents” as well as audio recordings.  Although the information was allegedly produced using a program “routinely used in cases such as this” (i.e. multi-defendant cases “employing investigative techniques, such as court-authorized recordings of intercepted communications”), it could not be sorted or searched and lacked certain data.  Accordingly, defendants sought reproduction.  The Government resisted, arguing, among other things, that the cost of reproduction was prohibitive and that it lacked the necessary computer storage space to reproduce the data in PDF format.  The Government further alleged that it had produced the particular data requested by defendants (although not in the form sought) and that given defendants’ heavy burden in asserting certain theories to which the data allegedly was relevant, the Government should not bear the burden of reproduction “to suit the defendants.”

Taking up the issue, the court acknowledged the absence of a standard for electronic production in criminal cases and established its own authority to grant appropriate relief in discovery, including ordering the manner of production.  The court then turned to a discussion of other criminal cases in which the issue was addressed, including United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (finding the district court did not abuse its discretion in failing to require reproduction in a different format) and United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) (applying Fed. R. Civ. P. 34 to an extensive document production).

Turning to the present case, the court again cited the absence of an applicable criminal rule and its inherent authority to grant appropriate relief and then indicated its determination that “the Government is the party better able to bear the burden of organizing these records for over twenty defendants in a manner useful to all” and that production must be in the form of a searchable PDF or in native format.  In so concluding, the court reasoned in part that the paper equivalent of the Government’s first production “would be if the Government took photos of thousands of pages (which the TIFF files are), put them in boxes, and invited inspection by defense counsel.”

Ending its discussion, the court reiterated the need for rules addressing ESI in criminal practice and its hope that the Advisory Committee on Criminal Rules would address the omission “at the earliest opportunity.”