In case you’re wondering if there remains any corner of the litigation world where lawyers can find shelter from all of this e-discovery stuff, one more such Eden has evaporated. The United States Department of Justice just released its Recommendations for ESI Discovery in Criminal Cases, and, somewhat surprisingly, they are thoughtful, comprehensive and impressive. “Surprisingly” because, apart from meeting Brady obligations, I think most lawyers regard criminal law as an area where there is no discovery, let alone this new-fangled e-discovery. It’s inspiring to see leaders in the criminal justice arena leading in such a forward thinking and clear-eyed fashion.
If, reading the guidelines, you conclude that these responsibilities won’t devolve upon lawyers, let me assure you that the support resources available to DOJ prosecutors are far more limited than you might expect (or that, for obvious reasons, Justice wants the public to recognize), and such resources wane as you move to the state and local criminal justice systems. Moreover, it takes two to e-tango, such that public defenders and the criminal defense bar must be conversant in these matters to negotiate protocols and undertake competent reviews of the ESI supplied.
So, once more, e-discovery competence matters. There is a crisis of competence in the bar where electronic evidence is concerned. Any lawyer who tells you that you don’t need to know this stuff is kidding themselves. It’s like suggesting you don’t need to know how to drive because you can always hire a chauffeur. USDOJ_Intro_Recommendations_ESI_Discovery