The Missing Weapon in the Criminal Defense Lawyers’ Arsenal

By: Susan Stewart Rich, B.A, J.D

Prior to law school, I had been working with lawyers for over ten years.  I found them to be a unique group of professionals who passionately immerse themselves in their work.  I have been privileged to work with many attorneys who represent their clients with a high degree of ethics, skilled analytical reasoning, and compassion.

My observations over the years have led me to the conclusion that criminal defense lawyers are amongst the most committed and persevering.  They, like their colleagues, obsess over details, assuring their clients are excellently represented at every step in the process.   Criminal defense lawyers, however, practice the law with an especially great deal of care because they know the stakes are high.   As a result, they work tireless to protect their clients’ constitutional rights.

They pour over crime reports, witness statements and every shred of evidence compulsively – yet for some inexplicable reason, many of these warriors have not recognized the importance of upgrading their arsenal with modern litigation technology.

Criminal defense lawyers should use litigation support software to manage discovery in large document cases.  The use of such tools significantly decreases the labor-intensive cost associated with document reviews, increases clients’ constitutional rights, insulates legal professionals from liability and allows users to perform tasks limited only by their creativity and the emerging technologies.

A. The Bottom Line:  Saving Time and Money

Choosing the right tools to manage discovery may seem overwhelming, but if you have a preference for Google over Bing then you may appreciate the finer distinctions between some of the most popular tools available.    Programs such as Concordance (a LexisNexis product) and Summation (recently acquired by AccessData) allow for multiple users to work within the same database at the same time.  Consequently, paralegals, investigators, legal assistants and attorneys can effectively and cohesively work as a team to globally record their mental impressions, annotate documents (e.g., highlight, underline and circle), perform open document reviews, build complex relational searches, and save customized queries.  The ability to easily perform numerous tasks globally decreases inefficiency and redundancy, therefore saving time and money.  Moreover, the software automatically functions as a time keeper by logging individual users’ events, thus efficiency in time keeping is increased as is the ability to determine what is being done, and by whom.  For example, if you want to search all notes and annotations made by Susan Rich, you can return a list of just those.  If you want to return notes by all users, you can do that as well.

Once the right set of tools is acquired and a system is refined and implemented for your specific caseload, the cost of training significantly outweighs the cost associated with inefficiency and redundancy inherent in a traditional document review, particularly because many lawyers and their support staff are familiar with the underlying technology and programs’ functionality.  For example, Concordance’s search logic and interface closely mimic those in Google and Windows respectively; therefore, new users face a relatively quick learning curve.  Additionally, technical support is provided by many programs to answer specific questions when they arise. 

B. Constitutional Consequences

Perhaps the greatest reason criminal defense lawyers should use litigation support software is to provide heightened constitutional protection to their clients.  As technology becomes an increasing part of our daily lives (e.g., iPads, multiple email accounts, Facebook, Twitter, smart phones, etc.) cases involving electronic data are inevitably on the rise.  For example, the prosecution of mortgage, wire and bank fraud cases often relies on obtaining relevant data from the computers of multiple defendants.  The data from even one computer can produce a huge amount of discovery.  The possibility of overlooking a key document or image could potentially give rise to major constitutional infringements.  Utilizing the technology appropriately would decrease the likelihood of such oversights.

For example, imagine a scenario in which your office has a case going to trial in a few weeks and  you need to find a document located on a co-defendants’ hard drive for use as a key exhibit.  Using Concordance (one of many helpful programs) the team would be able to search and find the document in seconds, determine the location of the original image (for evidentiary purposes such as chain of custody and authenticity), determine if it has been reviewed previously and review any notes or annotations made by reviewers in the past.   In short, these tools not only find the “needle in the haystack” they communicate who, if anyone, “dropped the ball” and exactly when and how the ball was dropped, invaluable information in the unfortunate event that liability becomes an issue (e.g., IAC claims).  Without such tools, you, or your co-workers will spend countless hours clicking through images one by one, or worse sifting through hard copies to find the “needle in the haystack.”  The Constitution cannot tolerate this type of inefficiency and many courts are recognizing that prosecutors and criminal defense lawyers need to catch up with the emerging technology.

C.  Protection from Liability

In United States v. Suarez, the government failed to turn over text messages between an informant and FBI agents because they had been deleted due to the phones’ automatic retention policy and the respective server’s incapacity to store information.  U.S. v. Suarez, No. 09-932, 2010 WL 4226524 (D.N.J. Oct. 21, 2010).[1]  The defendant showed the text messages were Jenks material, not necessarily relevant or exculpatory.[2] Id. at 5. The court determined the government created a substantial prejudice in deleting the text messages because (1) the messages were within the government’s control, (2) the government could have produced the messages but did not, (3) the messages were relevant to claims and defenses, and (4) it was reasonably foreseeable that the messages would later be discoverable.  Id. at 8.  Even though the court did not find the government acted in bad faith, it sanctioned the government by giving the jury an adverse inference instruction, specifically telling the jury they could assume the deleted text messages would have helped the defendant even though there was circumstantial evidence that the text messages were not exculpatory.  See Id. at 5 .  The defendant was ultimately acquitted.

This case is helpful if criminal defense attorneys proactively implement a systematic approach to managing incoming discovery in all its forms, especially the elusive electronic form.  Once criminal defense attorneys perfect this defensive game, they can play an offense, attacking their opponent on grounds of spoliation, a concept not exclusive to civil practitioners.

Examples from the Trenches

Imagine a hypothetical in which you receive a copy of a co-defendant’s hard drive from the government and somewhere, deep inside a folder that is located inside another folder that is located inside another folder there is a folder that has a relevant yet obscure title, thus eluding your previous key word searches.  For the sake of argument, imagine the following two scenarios:  (1) you find the folder and are unable to access it (i.e., you click on it and it will not open), or (2) you do not find the folder because the government has produced over 100,000 pages of discovery and given your limited time and resources, you did not do a sufficiently thorough review of the discovery.

If you happen to fall into category one and you do find the folder, you can file a specific motion to produce (taking into considerations your client’s needs).  If the government cannot produce the folder because, for example, its contents were destroyed or located on a server that is now unavailable, you may be entitled to an adverse inference instruction, as Suarez nicely illustrates.   Some legal scholars and judges have interpreted Suarez as concluding that an adverse inference instruction is not the only type of sanction appropriate for the government’s spoliation of evidence and that harsher sanctions would be reasonable in certain circumstances (comments made by Judge Herbert B. Dixon, Jr. (Superior Court of the District of Columbia) during a webinar hosted by the Federal Defender Office titled The ‘Ins’ and ‘Outs’ of Electronic Information in Criminal Investigations and Actions (March 10, 2011)).

If you fall into category two, and you never find the folder, you may find yourself up against an IAC claim if your client is sophisticated enough to determine that such a defense exists.   And unfortunately if the contents of the folder were either (1) harmful to your client or (2) irrelevant, the liability may still exist.  Leaving such a door open, even slightly, is simply not worth it.   Even if the defendant does not succeed with an IAC claimed based on spoliation, internal policies and politics may control.  Whether the folder is located may be the difference between losing your job and being promoted or getting a new client and losing an old one.

D. Alternative Uses

Not only will the use of litigation support software protect you from liability, it may unearth the brilliant technologist in you and your colleagues.  One relatively novel use of litigation support programs is automated indexing.  Searching a hard drive does not present the same types of problems and limitations as searching scanned documents.  Presently, the government sends a vast majority of its discovery to defense counsel as scanned images.  The scanned documents are text searchable by way of Optical Character Recognition technology (“OCR”).  This technology is limited and often misreads text.  For example, default searching logic often recognizes the letter “S” as a number “5” or the letter “O” as the number “0”. Relying on simple search logic to find key documents where text has been made searchable using OCR inevitably limits search results. Although programs such as Concordance have built in technologies capable of finding “fuzzy” text (words that are structurally similar to the word being searched), such technologies are far from perfect. Consequently, an index of documents may be necessary.

The indexing process can require hundreds of hours, depending on the size of the document set.  With a program like Concordance, a user can extract and export all of the OCR text into an Excel sheet (or an SQL based program for large data sets).   Once in Excel, the user can locate and remove all the spaces (” “) and/or other irrelevant noise that produced gibberish during the OCR process via a simple “find and replace” (or for the more technologically savvy, a relatively simple macro that you can get from a friend or find on the Internet).   The user can then export the edited text back into Concordance into a new and visible field allowing you and your staff to gain a bird’s eye view of the discovery.  This may sound technical, and does take a certain degree of skill, but the results are astounding.  Although a user might not be able to determine exactly what each document is by looking at the truncated OCR text in each field, they can more easily determine where one type of document begins and ends because of patterns unique to different types of documents. 

For example, the OCR produced from a Salt Lake City Police Report looks very different that of a Criminal History Report or a Memorandum of Interview.   In the litigation support industry, the manual process of determining where one document begins and ends is known as unitization and if required by you or your office can be hugely time consuming and expensive. This method of automated indexing, (or automated unitization), has personally saved me thousands of hours that I would have otherwise spent creating an index to use throughout the life of a case.  Furthermore, because tasks performed in Concordance are global, there is no need to perform the job again.  All those participating on the case can view the results on their end.

E.  Conclusion

The use of litigation support software by criminal defense attorneys is necessary in order to save a significant amount of time and money, protect clients’ constitutional rights, reduce personal and agency liability and promote user creativity.

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Susan is a Litigation Discovery Consultant for ILS.  Before earning her law degree, Susan had over 10 years of experience as a legal professional.  Her breadth of experience stems from her exposure to discovery in a variety of legal settings.  Susan has identified and resolved discovery issues for private corporations subject to federal regulatory investigations, capital habeas claimants, white-collar defendants and a number of clients with complex civil litigation matters.  Consequently, she is familiar with the practical and legal issues discovery presents to both the civil and criminal practitioner. 

As a consultant, Susan assists clients with discovery strategies, particularly focusing on how to apply the principles underlying the rules of civil procedure in criminal defense cases in order to obtain ESI discovery from the government.  Additionally, she focuses on identifying defenses generated by the unavailability, inaccessibility or destruction of ESI discovery. 

Susan’s experience designing and building databases combined with her legal education allows her to provide specific and detailed solutions catered to each client’s case and data.  Susan’s knowledge of the products and their underlying technology allows her to negotiate with opposing counsel to obtain information that might seem irrelevant to those focused on non-ESI related issues in preparation for, trial, sentencing, and the appeals process. 

Susan earned her B.A. degree from Brigham Young University and her J.D. degree from the S.J. Quinney College of Law, The University of Utah. 

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[1] Although this is an unpublished case out of the district of New Jersey, it is relevant because it establishes reasonable precedent in a new area of the law.

[2] Because the text messages were deleted, there was no way to prove they were either relevant or exculpatory.

In re Fontainebleau Las Vegas Contract Litig., 2011 WL 65760 (S.D. Fla. Jan 7, 2011)

By Diane Barry

The dangers of mixed use servers.  In In re Fontainbleu Las Vegas Contract Litigation the matter concerned financing the construction of the Fontainebleau Resort and Casino in Las Vegas.  The immediate dispute was over production of ESI : the Fontainebleau moved the court for an extension of the production deadline.  Fontainebleau claimed that review of the ESI was moving very slowly, as the servers which housed the Fontainebleau’s ESI was shared space – they shared the servers with multiple other entities.  It appears that security on the servers was sloppy – no allocation of separate space for separate entities.  All of the documents were co-mingled  All in all, they were having a terrible time teasing out their own documents; conducting a privilege review; and handing the results over to the other side.  They couldn’t make the deadline.  Their suggestion: they would conduct a full on review of the email server(s) and provide a privilege log.  The other servers would be handed over wholesale, and they’d get a clawback of any privileged items the opps found.

The court simplified the matter for them: since the documents had been co-mingled on a server where everyone and his brother had access, there is no privilege to worry about.  In addition, if servers are handed over to the opposition wholesale without any prior review, there won’t be any privileged items left to hand back on those either.   It looked to the court like all privileges had been waived, and Fontainbleau could just produce the documents toute suite.

FN1. Fontainebleau did not explain in its motion to quash why the shared documents on the computer servers would still be privileged (assuming they were privileged in the first place) if they were stored together on servers presumably accessible by other entities.  Fontainebleau represented in its motion that the servers "are owned by Fontainebleau Resorts, LLC (one of The FBR Entities) but [ ] contain documents belonging to various Fontainebleau and Turnberry Construction entities, including the Debtors" (DE# 93, at 2).  Likewise, Fontainebleau did not explain in its motion why the entities would not lose privilege protection under a plan where each entity would receive "a full copy of each of the servers" (and presumably have unfettered access to all material, including information and privileged matter belonging to others).

Fontainbleau ignored the court’s order, and proceeded to produce as it proposed: wholesale production of the accounting and “documents” servers; email with a privilege log.

The court then held that Fontainbleau had waived any privileges as to the accounting and documents servers. Since the privilege log was provided as to the emails (albeit late) the court declined to rule at that time that privilege had been waived as to email.  Despite it’s finding of privilege waiver, the court provided Fontainbleau with a limited protection of their disclosed privileged items: the court ordered the Term Lenders to notify Fontainebleau of any privileged materials it identified in its review, but stated plainly that the documents were fair game.  Also, the  court stated that the plaintiffs would not suffer adverse consequences “should they inadvertently omit privilege materials” from their court-ordered notification(s).

I find three things of note in this case.

First, sloppy information management practices at the client prior to the institution of litigation almost sank the document production effort before it began.  Sharing servers without good security to segregate the servers into different areas for different users is sloppy work on the part of IT.  Good client counseling prior to litigation about best practices could have assisted the litigation effort and saved what must have been a mountain of attorneys bills.  The law firm spent time trying to tease out their own client’s documents ($$$); they spend time meeting and conferring with the opposition about the horrible situation ($$$) and they had to resort to law and motion to stall for more time ($$$).  Counseling and some IT adjustments would have been much less expensive for the client than the additional litigation costs imposed by the IT practices.

Next, the party claiming a privilege bears the burden of proving the elements of the privilege, and when attacked, the burden of proving that it has taken adequate steps under the circumstances to protect the claimed privilege.  The court in this case took a position similar to that of Chief Magistrate Grimm in Victor Stanley I  – if there was any privilege remaining here, the defending party failed it’s burden to show the facts that would establish or protect it.  If there was security on the servers to segregate areas; if there were other safeguards to prevent other groups from viewing privileged items; if there were mitigating circumstances, Fontainebleau failed to bring such facts to the attention of the court.  Prove it or lose it.

Finally, Fontainebleau should have lost its privileges in their entirety. However, for reasons not apparent in the opinion, the Judge took pity on Fontainebleau.  The court could have simply held that all privileges were waived (please produce all documents listed in your privilege log), as Fontainebleau failed to prove up sufficient facts to establish and protect the claimed privileges.  The Judge hedged at the last minute, and gave them partial protection – an undeserved gift from the bench.  How comfortable are you in relying on kindness from the bench?

Diane is Director – Discovery Strategy & Management at ILS