Page 272 - Ad Hoc Report June 2018
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This means that defense attorneys must use a number of different software pro- grams and need access to multiple platforms to properly go through discovery.1052 Attorneys have to maintain not only a working knowledge of ever-updating and expanding technology but also access to the various tools needed to review the ESI.1053 As one panel attorney explained, “To use an audio analogy, the ATF is maybe using a [vinyl] LP to get the thing to us, somebody else is using an 8-Track player, somebody else is using a cassette tape, [and] somebody else is using an MP3 player.”1054 Even if defenders and panel attorneys try to request discovery in similar formats, one witness stated that the government’s response to him was, “We don’t control what those agencies use as a platform.”1055
Panel attorneys have an especially difficult time handling ESI. Many are solo practitioners with little or no staff, and they do not have the training, experience, or assistance needed to access and review ESI.1056 Some lack even basic technical knowledge, and many do not have access to paralegals knowledgeable about elec- tronic document review. In rural areas panel attorneys struggle to find paralegals with the necessary skills, while those working in large cities have difficulty finding technologically-adept paralegals who are willing to work at the current CJA rate of between $35 and $50 per hour. One federal defender stated that she “heard about e-discovery that the U.S. Attorney’s Office is using where you download discovery from a cloud. A lot of the panel attorneys don’t know what a cloud is.”1057
Even panel attorneys with the knowledge and skill can face insurmountable barriers. One witness testified that even where the government has tried to organize discovery by agency and saved the discovery on discs, the ESI was still inaccessi- ble. One witness described instances where the software needed to read those files is now obsolete; panel attorneys don’t have those older programs and operating systems. This same witness also explained that even when the U.S. Attorney’s Office tries to be helpful, they sometimes deliver a database that is defective.1058
1052 Whiledefenseattorneysaretryingtokeepupwiththeapplicationsnecessarytoreviewfiles,they also must understand the underlying nature of various file formats. By converting files into a single format, information from those original files may be lost or obscured. While having, for instance,
a searchable “PDF”file for all documents may make review seem simpler, important information included in the original documents can be lost in the conversion. Defense attorneys need to know enough about the original format of discovery files to request it in formats other than what has been provided by the government, even before they need to have knowledge and access to the software necessary to capture the information from the original file.
1053 RobertBurke,FormerChief,TrainingDivision,DSOandSupervisoroftheNationalLitigation Support Team: “There’s so much digital information and the technology changes so fast that it’s difficult for people to keep up with it.” Robert Burke, Former Chief, Training Division, DSO, Public Hearing—Philadelphia, Pa., Panel 7, Tr., at 28.
1054 GilbertSchaffnit,CJADistrictRep.,N.D.Fla.,PublicHearing—Miami,Fla.,Panel6,Tr.,at28. 1055 Id.
1056 VirginiaGrady,FPD,D.Colo.&D.Wyo.,PublicHearing—SantaFe,N.M.,Panel2,Tr.,at8. 1057 Id.
1058 JessicaSalvini,CJAPanelAtty.,D.S.C.,PublicHearing—Miami,Fla.,Panel4,Tr.,at12.
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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