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 (ESI) 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.  Andrew Goldsmith, the DOJ National Criminal Discovery Coordinator, and Sean Broderick, the National Litgation Support Administrator, serve as co-chairs.  Donna Elm, Federal Public Defender for the Middle District of Florida, Doug Mitchell, CJA Panel Attorney District Representative for the District of Nevada, Bob Burke, Chief of the Training Branch for Office of Defender Services, and Judy Mroczka, Chief of the Legal and Policy Branch for Office of Defender Services, round out the membership on the Defender Services side of the joint working group.


The ESI protocol was directly impacted by input from FDO and CJA panel attorneys, FDO technology staff, paralegals, and investigators in the field.  In addition, we received comments and input on draft versions of the Recommendations from different working groups compromised of Federal Defenders and CJA panel representatives (just as DOJ did on their side).


The Recommendations consist of four parts:


  1. an Introduction containing underlying principles, with hyperlinks to related recommendations and strategies; 
  2. the Recommendations themselves; 
  3. Strategies and Commentary that address technical and logistical issues in more detail and provide specific advice on discovery exchange challenges; and 
  4. 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 useable 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.  Although almost all information is now created and stored electronically, the discovery provisions of the Federal Rules of Criminal Procedure are largely silent on this issue.  At the same time, there is a void to fill resulting from our shift from a paper to a digital-based society.  The National Litigation Support Team expects to continue the collaborative process with DOJ, and looks forward to an ongoing dialogue with people in the field who are dealing with electronic discovery.