Page 277 - Ad Hoc Report June 2018
P. 277

 “we do need hands-on programs, where people use the technology in similar ways they do their cases, or when possible, in their own cases. Sitting in a presenta-
tion or two on technology will not do the trick.”1082 But panel attorneys often lack the time to attend even a brief training outside where they live and work. Further, NLST is tasked not only with training panel attorneys, judges, and defenders. It also must provide training in criminal discovery to ESI vendors that previously have worked only in civil litigation.1083 Vendors need to understand, for instance, that
in criminal cases client information is confidential, that no documents should be redacted, and that they should refuse to turn over any information at the govern- ment’s request. It falls to NLST to educate them on such matters.1084
NLST employs three Coordinating Discovery Attorneys (CDAs) on a contract basis who are based in Seattle, Kansas City, and New York City. These three CDAs are skilled in using electronic discovery software and in processing various media and file types, and their job is to assist panel attorneys.1085 The CDAs are intended to reduce the panel attorneys’ reliance on the government, assist with commu- nication in large and multi-defendant cases, and contain defense costs.1086 But
the NLST Administrator, Sean Broderick, testified that the initial plan and budget assumed 10 active cases per CDA. At this point, the three of them are collectively handling twice that number, roughly 60 cases.1087 According to one CDA, not only do panel attorneys reach out for assistance weekly, but courts and even some U.S. Attorney Offices in large ESI discovery cases are requesting, and in some cases requiring, that defense attorneys obtain the assistance of a CDA.1088 The demand for assistance with electronic discovery far out-strips what these three already overburdened CDAs can provide. The CDA program is simply inadequately staffed to address the problems raised by electronic discovery.
1082 Sean Broderick, National Litigation Support Administrator, Public Hearing—San Francisco, Cal., Panel 2, Tr., at 7.
1083 RusselAoki,CoordinatingDiscoveryAtty.,PublicHearing—SanFrancisco,Cal.,Panel2,Tr.,at8–9.
1084 RusellAoki:“Wecertainlyhadthishappenononeoccasion,wherethegovernmentwantedto know if the lawyers are accessing the database, and when they’re accessing it, and who is accessing
it. The database company has to know you cannot give that information. Absent an order, you’re not going to give that out. How many database companies would have folded as soon as somebody flashed their FBI badge in front of them?” Id. at 10–11.
1085 TheNLSThasbeenauthorizedtohireafourthCDA.
1086 DamonMartinez,U.S.Attorney,onthehelpfulnessofaCDA:“Suchacoordinatorcanassistthe CJA attorneys in handling discovery, especially e-discovery, reduce the need for CJA attorneys to rely on the government for technical assistance and more important, provide the defense with a central line of communication with respect to discovery in large cases. Any such coordinator should be skilled in using discovery software and processing various media for doing, downloading, and duplicating electronic products.” Damon Martinez, U.S. Atty., D.N.M., Public Hearing—Santa Fe, N.M., Panel 1, Tr., at 13.
1087 Sean Broderick, National Litigation Support Administrator, Public Hearing—San Francisco, Cal., Panel 2, Tr., at 20.
1088 RusselAoki,CoordinatingDiscoveryAtty.,PublicHearing—SanFrancisco,Cal.,Panel2,Tr.,at10.
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 233
 States unless approved by the Conference itself.
 


















































































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