Page 278 - Ad Hoc Report June 2018
P. 278

 234 2 0 1 7
11.2.2 Defender Offices
In some districts, the local defender office serves as a resource to assist panel attor- neys with ESI. Defender offices, unlike panel attorneys, have dedicated funding for software, review platforms, services, and training, and often have the paralegals and IT support staff to manage ESI discovery. In multi-defendant cases, in particular, the defender office often takes the lead in organizing discovery materials. As one defender testified:
[We] work with the panel attorneys as best we can, understanding that there’s potential conflicts, so that we can organize that the discovery materials and the panel attorneys can have access to it by coming to our office, and we try to work with our co-counsels to lessen the bill, so to speak, to the CJA attorneys.1089
CJA panel attorneys testified to the Committee that when an FPDO or a CDO is involved in assisting with ESI discovery, it made a tremendous difference. One com- munity defender not only “took on the cost” of handling all the ESI, it then gave all the panel attorneys searchable discs so they could easily access the files.1090
But while some FPDOs and CDOs can be of great assistance to panel attor- neys—or at least in some cases—others are often not in position to do so, either legally or financially. A conflict of interest can prevent an office representing one defendant in a multi-defendant case from assisting panel attorneys who are repre- senting co-defendants. In other cases, lack of resources is the problem. One federal defender explained that her office simply did not have the resources to continue assisting panel attorneys with their clients after her office’s client settled.1091 As discussed in Section 3.6, FPDO and CDO staffing and budgets are based on a work measurement formula that does not take into account this kind of technical assis- tance to panel attorneys. As one defender pointed out, when such assistance is provided but “unpaid,” it both subsidizes and hides the true cost of these “incredibly complex cases brought by the federal government.”1092 The result: judges may walk away with the mistaken impression that these cases can be handled less expensively than is possible. 1093 And the deeper changes in the system through better coopera- tion and more resources for panel attorney are left unaddressed.
Using FPDOs and CDOs as a solution to ESI discovery is not sufficient or sus- tainable, and while NLST and the CDAs have done an exemplary job, they are not equipped to adequately address the Sixth Amendment issues raised by modern
1089 JerryNeedham,AFPD,D.Or.,PublicHearing—Portland,Or.,Panel2,Tr.,at26.
1090 JudgeRosannaPeterson,E.D.Wash.PublicHearing—Portland,Or.,Panel3,Tr.,at26. 1091 HilaryPotashner,FPD,C.D.Cal.,PublicHearing—SanFrancisco,Cal.,Panel7,Tr.,at31. 1092 SteveKalar,FPD,N.D.Cal.,PublicHearing—SanFrancisco,Cal.,Panel7,Tr.,at31.
1093 See,e.g.,id.at30–31.
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.

   276   277   278   279   280