A DOJ Acknowledgment of Discovery in the Brave New World of Computers

May 7, 2013
By Hanging Out with Carl Gunn


  • Don’t forget e-mails and other electronic material in your discovery requests.
  • DOJ has warned agents and prosecutors — and may warn witnesses — about such discovery.
  • Let their loose lips sink their ships.


Some time back, the DOJ memo on “Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases” attached here came to my attention. Since this subject is somewhat related to last week’s post, I thought I’d share this memo and some thoughts it suggests.

Initially, the memo is valuable in that it recognizes that electronic information not preserved on paper but still existing on a computer may be discoverable and should be reviewed for that possibilility by the prosecutor. Examples the memo gives in section II on page 2 include “emails, text messages, SMS (short message service), instant messages, voice mail, pin-to-pin communications, social networking sites, bulletin boards, blogs [oops, let me delete something here], and similar means of electronic communication.” Another example not listed would be the prior drafts of memos that I discussed in my post last week, at least where that prior draft reveals something that would qualify as Brady or Giglio material, either because of its substance or because of its inconsistency. That example also reminds one of what this memo acknowledges on the last page, that’s it not just his or her own “e-material” that the prosecutor needs to check but the “e-material” of the whole “prosecution team.” And discoverable material also includes emails and other e-communications that witnesses may have sent to one or more members of the prosecution team.

The memo also suggests, albeit in a slightly derogatory fashion, some ways in which we might use such material. In section III.A, it warns agents and others:

Because e-communications frequently are prepared and sent quickly and without supervisory review [or suppression of information perhaps? see last week’s post], they may not be as complete [or incomplete? again see last week’s post] or accurate as more formal reports and may reflect a familiar or jovial tone. In court, defense counsel [those troublemakers!] may try to use e-communications containing material inconsistencies, omissions, errors, incomplete [or more complete?] statements, or jokes to impeach the credibility of a witness. Additionally, there is a risk that defense counsel will use poorly drafted [more fairly and honestly drafted?] e-communications between agents, witnesses, and/or prosecutors in court to create the false [correct?] impression that they contain relevant or contradictory information. These risks can be particularly problematic in criminal prosecutions because, depending upon their content, e-communications may be discoverable under federal law.

So there’s how we might use the different forms of electronic communication.

Then a couple of other things of interest in this memo. First, on the upside, it sets standards for disclosure – in section III.D – that we could use to lobby and persuade a prosecutor and/or his or her supervisor – and maybe even a court. Second, on the downside, it could encourage the suppression of Brady or Giglio material, by reminding prosecution team members in its first “Summary” paragraph that they should “think about” any e-communication they may send, that they should use “appropriate” language, and that they should think about “an alternative [read, unpreserved?] form of communication.” It also suggests – in paragraph 9 of section III.C – that they “should inform [read, warn?] individuals not on the prosecution team but otherwise involved in the case, including victims, witnesses, and outside experts, that e-communications are a written record that might be disclosed to the defendant and used for impeachment in court [read, so don’t create them?] like any other written record.”

To sum up, this memo suggests a whole new area of information to request in our discovery letters and a DOJ document to support the request. Think about adding it to your discovery requests and cross-examination repertoire.