Page 273 - Ad Hoc Report June 2018
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 One panel attorney stated that the U.S. Attorney’s Office should be required to turn over discovery “in a format that doesn’t make us expend [unnecessary] time [to access the data] and inflate our invoice. We don’t want to bill for that time. We’d rather be representing our clients but we need to get the discovery in the formats that’s reasonable for us to be viewing.”1059 The time required to review such discov- ery and the refusal of some judges to approve payment for that time means, at best, some panel attorneys will review voluminous amounts of discovery without any hope of payment and, at worst, will make a cost-benefit analysis and decide to forgo necessary review. One judge described the current way panel attorneys are asked to handle ESI discovery as “absolutely not sustainable.”1060
A related struggle for defenders and panel attorneys alike is their inability
to present and discuss ESI discovery with their clients who are in detention.1061 Technology for discovery review is rarely available within jails or prisons, making
it difficult for defense attorneys to review electronic evidence with their clients.1062 This strains the ability of the defender to meet Sixth Amendment requirements while also balancing significant defense costs, especially when clients are held in remote facilities. One federal defender stated that, “Judges don’t want to pay an attorney to go into the lockup and physically go over the discovery with them. They would like to have mechanisms that would make it more convenient to review elec- tronic discovery, and, I think, save costs at the same time.”1063
11.1.2 Disparities in Practice
The quality of criminal representation in an ESI-heavy case varies dramatically depending on the district in which a case is brought, the judge a case is before, and the attorney assigned to the case.
Discovery in a criminal case begins with the government. Many U.S. Attorneys work with defense attorneys to ensure that discovery is produced in accessible, searchable formats. One U.S. Attorney told the Committee, “We’ve got a system
1059 GilbertSchaffnit,CJADist.Rep.,N.D.Fla.,PublicHearing—Miami,Fla.,Panel6,Tr.,at28.
1060 JudgeYvonneGonzalezRogers:“[T]hetheplatformsaredifferent,andthatwasabigshockto me. When hundreds of thousands of pages are delivered to the defense attorneys in TIFFs, where every single page has to be clicked to open it, how can we be surprised that the costs don’t skyrocket? It’s just not...and it’s just a waste of time.” Judge Yvonne Gonzalez Rogers, N.D. Cal., Public Hearing—San Francisco, Cal., Panel 5, Tr., at 14.
1061 FormerJudgeNancyGertner:“Ithinkit’sbecomemuchmoresubstantialwherethedefendant would get a file of gigabytes of material in it and then rush to the judge for an expert to help them search it, some mechanism for reviewing the files with the client in the prison, which is an incredibly difficult thing to do.” Judge Nancy Gertner (ret.), Harvard Law School, Public Hearing—Philadelphia, Pa., Panel 2b, Tr., at 24–25.
1062 JudgeRichardBoulware:“[F]orthosedefendantswhoareincustody,thecostofgettingthis amount of massive data into a prison and also allowing for someone to review the data if in prison can be very significant in terms of what type of technology used to allow for that to actually happen.” Judge Richard Boulware, D. Nev., Public Hearing—San Francisco, Cal., Panel 5, Tr., at 35.
1063 JamesWade,FPD,M.D.Pa.,PublicHearing—Philadelphia,Pa.,Panel3,Tr.,at24.
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 229
 States unless approved by the Conference itself.

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