Page 270 - Ad Hoc Report June 2018
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Section 11: Electronic Discovery & Litigation Support
Since the Prado Report, federal criminal litigation has changed drastically. Electronic discovery, often referred to as e-discovery or electronically stored infor- mation (“ESI”), has become the norm. Even in cases that are not “extended or complex,” the government may have computer and smartphone files, information from social media accounts like Facebook and Twitter, hours of video surveillance, wiretaps, and GPS tracking information.
This evidence may be delivered in a variety of formats and files that cannot be examined without a working knowledge of multiple software programs and processes, as well as familiarity and comfort with reviewing different file formats. Defending a client in a case with a large amount of electronic discovery is time-in- tensive and costly. For example, current smartphones with 128 GB of memory can hold information equivalent to 9.6 million pages of paper.1045 Without adequate training, support, and financial assistance for defenders and panel attorneys grap- pling with e-discovery, defendants will not receive effective representation.
Defense attorneys have a professional obligation to keep up with the tech- nological advancements needed to effectively represent their clients.1046 The obli- gation to provide effective representation does not vary with the amount and type of the evidence involved. As explained below, the current ad hoc, improvised system of handling ESI in criminal cases complicates and adds to the burdens on the defense. Handling ESI during discovery in a criminal case requires the prose- cutor, the defense attorney, and the court to understand the technology involved and work together to protect the defendant’s rights and the overall integrity of the
1045 Thisisbasedonaconversionrateof75pagespermegabyte.See resources/data-conversions/ (last visited on January 5, 2017).
1046 Twenty-threestatebarsandtheABAmodelrulesrequireattorneysremainversedinrelevant technology.
No recommendation presented herein represents 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 the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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