A subcommittee of the Joint Electronic Technology Working Group (JETWG) developed the “Guidance for the Provision of ESI to Detainees ,” a document which provides advice to the various stakeholders in the criminal justice system regarding providing pre-trial detained clients with access to e-discovery.

At the time of the 2012 release of the “Recommendations for Electronically Stored Information Discovery Production in Federal Criminal Cases” (also known as the ESI Protocol), resolution of the issues associated with such access was beyond the scope of the protocol.  This document now addresses this important area of concern for federal defender offices and CJA panel attorneys who are now on a daily basis dealing with discovery that is digital in format (commonly referred to as e-discovery or ESI - electronically stored information).  At the same time, it recognizes the critical concerns of facilities, U.S. Marshall’s Service (USMS), and the Government in this process.

This Guidance provides practical information for jurisdictions to address the specific challenges in delivering e-discovery in digital format. Though most federal discovery is now electronic, many facilities that house federal pretrial detainees remain structured to enable clients to review paper discovery, not digital discovery.  Moreover, the more than 1,800 facilities used by the USMS have a wide range of policies and practices, and there is no “one size fits all” solution.  However with forethought and proper safeguards, cooperative practices can be forged to get e-discovery to most pretrial detainees.

This Guidance includes input from an array of perspectives: attorneys, litigation support and IT experts from the field, and representatives from DOJ, U.S. Attorneys, Federal Defenders, and CJA panel offices.  Notably, it also includes feedback from Bureau of Prisons and USMS, and insights from judges who served on this project, Magistrate Judges Jonathan Feldman and Laurel Beeler.

JETWG recommends that districts identify “points of contact” of the affected agencies to establish local working groups (composed of judicial, CJA, FDO, DOJ, and USMS representatives (BOP if applicable to the jurisdiction)) to develop tailored procedures that all can accept.  These groups provide a forum for periodic reporting on developments and issuing useful local practices.

JETWG invites any suggestions about improving, and feedback on developments arising from, this Guidance.

JETWG Co-chairs, Sean Broderick and Andrew Goldsmith


Guidance for the Provision of ESI to Detainees