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March 01, 2012

E-Discovery Can Be Criminal

When it comes to e-discovery, the criminal division has "come a long way from the late 1990s to mid-2000s — when the electronics working group simply focused on how to scan paper documents," reported LTN's Evan Koblentz on the release of the Recommendations for ESI Discovery in Federal Criminal Cases by the Joint Electronic Technology Working Group.

Now, U.S. District Judge Shira Scheindlin weighs in, along with technology consultant Jeffrey Rabkin, with a careful consideration of the "core concepts" of the recommendations, what controversies they might raise in practice, as well as what questions the working group needs to address in future additions to the guidelines.

Core concept: the need for a meet and confer, much like that outlined in Rule 26(f) of the FRCP. Handcuffed_laptop400

Controversy: a clause that states in response to ESI volume "the parties increasingly will employ software tools for discovery review," which could be read as an endorsement of technology-assisted review in criminal cases.

The future: How exactly do we define the government's duty to preserve in a potential criminal case? The defense's?

Read the New York Law Journal article, "Core Concepts of New ESI Guidelines for Criminal Law."

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