Page 274 - Ad Hoc Report June 2018
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worked out within our offices and with the CJA panel lawyers so that they can get discovery quickly and have it provided in a readable, searchable manner.”1064 But the government does not always cooperate in this way. One senior judge said discovery disclosure in his district was referred to as “the dump truck method. The government drives up the dump truck, dumps off all of the discovery, five thousand documents, fifty tapes, and now we have to go through all of that to make a determination as to what’s relevant or not.”1065 Even within a district, practices may vary depending on the prosecutor bringing the case. A federal defender told the Committee:
[H]ere in this district...the process is quite haphazard. We may have a case where you just get a document dump. You’re getting terabytes of informa- tion with no clue as to what that discovery contains. We have other cases where prosecutors will provide a skeletal index. We have other cases where the prosecutors provide a full index and will sit down and talk with you and walk you through everything that’s in the 1,000 PDFs that’s contained in this one particular folder. Unless there is a uniform standard, especially in the area of electronic discovery, I don’t know if there’s much we can do except bargain on...a case by case basis for a better outcome.1066
In addition, the government has complete control over discovery, and the gov- ernment can inflate the costs of defense representation exponentially with its ESI disclosure practices. One witness testified that one of her cases “became so protracted because of the government’s failure to provide timely discovery and failure to docu- ment what it had provided.”1067 Though certainly not the case in every district, another judge stated that in his experience, despite attempts to work with the U.S. Attorney’s Office “about how we can handle this and keep costs down, the U.S. Attorney’s response is, ‘I don’t really care about your costs. That’s not my problem.’”1068
One panel attorney spoke about how frustrating it is to try to keep his own costs low while the government’s inefficient handling and disclosure of ESI discov- ery materials inflated those expenses. Recalling a case involving 20 separate doc- ument dumps the attorney stated, “We spend so much time talking about fiscal responsibility from the defense side and all of those things, and the government just gets a pass on all that.”1069 The witness went on to explain that the way discovery is disclosed “affects the length of the trial...and then it affects the cost that I’m billing the government to represent [my client].” 1070
1064 BillyJ.Williams,U.S.Atty.,D.Or.,PublicHearing—Portland,Or.,Panel3,Tr.,at10.
1065 SeniorJudgeDonaldGraham,S.D.Fla.,PublicHearing—Miami,Fla.,Panel2,Tr.,at9.
1066 MichaelCaruso,FPD,S.D.Fla.,PublicHearing—Miami,Fla.,Panel1,Tr.,at33.
1067 LynnPanagakos,CJADist.Rep.,D.Haw.,PublicHearing—SanFrancisco,Cal.,Panel4,Tr.,at17. 1068 ChiefJudgeMichaelSeabright,D.Haw.,PublicHearing—SanFrancisco,Cal.,Panel5,Tr.,at12. 1069 DanielAlbregts,CJADist.Rep.,D.Nev.,PublicHearing—SanFrancisco,Cal.,Panel4,Tr.,at19. 1070 Id.
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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