Page 271 - Ad Hoc Report June 2018
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 criminal justice system. A model of this necessary cooperation, the Joint Working Group on Electronic Technology, a group dedicated to addressing best practices for efficiently and effectively managing electronic discovery, created a guide for judges on how to manage electronic discovery and ancillary issues. (The Working Group is comprised of federal and community defenders, DOJ representatives, panel attor- neys, DSO employees, and representatives of the AO and the federal judiciary.1047) Its publication, “Criminal e-Discovery: A Pocket Guide for Judges,” supplements the bench book provided to every federal judge to assist them in carrying out their duties. Ensuring that all defendants, even those who cannot afford a lawyer, receive high-quality representation requires additional investment in ESI support and in procedures that promote coordination in this area among all parties. These invest- ments will not only protect fundamental constitutional rights but will also conserve both human and financial resources.
11.1 Defending Clients in the Age of Digital Technology
11.1.1 Nature of the Challenge
To meet their ethical obligations and mount a zealous defense to charges brought by a government with considerably more resources and institutional support for the management of electronic evidence, defense attorneys face a number of hurdles.1048 ESI has made it difficult for defenders, especially panel attorneys, to effectively rep- resent their clients. Witness after witness before the Committee spoke of the myriad problems presented by ESI discovery. Indeed, it was said that because of ESI, “in recent years, it’s just impossible to review that discovery in a way that you can effec- tively represent your client.”1049
The initial problem is the sheer volume of ESI a defense attorney receives.
As one witness explained, “It is not uncommon in this district to have fraud cases where three [terabytes] of information have been provided to counsel. [That comes out to] 6,000 filing cabinets ....Imagine the CJA lawyer who’s a solo practitioner who has to make sense of 6,000 file cabinets and not have the support staff.”1050
As noted above, those records are often supplied in a range of formats, and “the technology and the delivery of the discovery varies from agency to agency.”1051
1047 SeanBroderick’ssubmittedwrittentestimonytotheCommittee.
1048 Donna Lee Elm testified to the Committee, “You know the million-dollar budget....just for the training facility for DOJ? That’s our entire budget for all of our federal defender defense.” Donna Lee Elm, FPD, M.D. Fla., Public Hearing—San Francisco, Cal., Panel 2, Tr., at 5.
1049 DavidMarkus,CJAPanelAtty.,S.D.Fla.,PublicHearing—Miami,Fla.,Panel5,Tr.,at6. 1050 MichaelCaruso,FPD,S.D.Fla.,PublicHearing—Miami,Fla.,Panel1,Tr.,at10.
1051 Id.at36.
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 227
 States unless approved by the Conference itself.
 




















































































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