Page 275 - Ad Hoc Report June 2018
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 The quality of representation in ESI-heavy cases can also vary depending on the judge to whom the case is assigned. Some judges understand technology, so they understand, for example, the need for native formats1071 or searchable documents. In a complex case with a large number of documents and other ESI, it may be neces- sary to hire an outside vendor to assist with the copious amount of discovery. Judges who are less familiar with ESI might not know why such a vendor’s services may be necessary. In addition, outside vendors can be expensive, and even judges who rec- ognize their need may still experience sticker shock and balk at paying the necessary expenses to enable defense attorneys to mount a zealous defense.1072
In one multi-defendant case, an outside vendor was required to handle the document production and processing for the panel attorneys. On the eve of trial, the panel attorneys received notice that the judge didn’t want to pay for the discov- ery management software anymore. Their response was plain. They told their panel attorney district representative, “We can’t try this case. There are millions of docu- ments in this case. If on the eve of trial the software to manage those documents is taken away from us, we are very experienced attorneys, but there is no way that we can do that.”1073 Ultimately this judge did not cut funding for the software, but effec- tive assistance should not hinge on whether any particular judge presiding over an ESI-heavy case has sufficient training and experience necessary to understand and adequately fund defense needs in these cases.
Judges themselves take a number of different approaches to managing ESI. There are judges who take an active approach and require the U.S. Attorney’s office to produce usable discovery. One such judge told the Committee that discovery must be reviewable, and that “judges have a role in that ....We have a lot of cases that are document intensive. We have a lot of large-scale drug cases with hundreds of recorded conversations. Narrowing the focus will save the public a lot of mon- ey.”1074 Another judge said that if a defense attorney came to him with concerns about ESI, the judge would “sit down with a prosecutor and say”:
You have to have this information in a format to work in my courtroom with these computers. You have the ability to get it in a format that it’s usable by other people besides whatever agency [provided it] or your office. Get it to this attorney in the same format so they’re not going to spend thousands of hours and have to hire a forensic expert just to get to the information.1075
1071 Receivingfilesinnativeformatallowsdefenseattorneystoseethemeta-andembeddeddata,or hidden data, associated with the file, which is not preserved when the file is converted into a different format. Meta- and embedded data can include time stamps, locations, and other specific information which can be extremely important for defense attorneys to provide effective representation.
1072 RusselAoki,CoordinatingDiscoveryAtty.,PublicHearing—SanFrancisco,Cal.,Panel2,Tr.,at27. 1073 JessicaHedges,CJABoardChair,D.Mass.,PublicHearing—Philadelphia,Pa.,Panel9,Tr.,at15. 1074 SeniorJudgeDonaldGraham,S.D.Fla.,PublicHearing—Miami,Fla.,Panel2,Tr.,at9–10.
1075 JudgeRobertScola,Jr.,S.D.Fla.,PublicHearing—Miami,Fla.,Panel2,Tr.,at28.
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 231
 States unless approved by the Conference itself.

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