The Department of Justice/Administrative Office Joint Working Group on Electronic Technology (JETWG) has developed a recommended ESI protocol for use in federal criminal cases. Entitled “Recommendations for Electronically Stored Information Discovery Production in Federal Criminal Cases,” it is the product of a collaborative effort between the two institutions and it has the DOJ leadership’s full support.
The primary purpose of the ESI protocol is to facilitate more predictable, cost-effective, and efficient management of electronic discovery and a reduction in the number of disputes relating to ESI. The protocol provides a mechanism, through a meet and confer process, to address problems a receiving party might have with an ESI production early in a case, and to discuss the form of the discovery that the party receives. The participants on both sides of JETWG are intimately familiar with the day-to-day challenges attorneys face in criminal cases, and the protocol reflects a pragmatic approach to the problems both prosecutors and defense attorneys face when dealing with electronic discovery.
JETWG negotiated and drafted the protocols over an 18-month period. The joint working group has representatives from the Federal Defender Offices, CJA Panel, Office of Defender Services, and DOJ, with liaisons from the United States Judiciary.
The Recommendations consist of four parts:
- an Introduction containing underlying principles, with hyperlinks to related recommendations and strategies;
- the Recommendations themselves;
- Strategies and Commentary that address technical and logistical issues in more detail and provide specific advice on discovery exchange challenges; and
- an ESI Discovery Production Checklist.
In general, the agreement is designed to encourage early discussion of electronic discovery issues through “meet and confers,” the exchange of data in industry standard or reasonably usable formats, notice to the court of potential discovery issues, and resolution of disputes without court involvement where possible.
This is an important step towards addressing the ESI challenges that people can face in a federal criminal case.