Clarifying the government's obligations for the preservation and production of ESI
Over the past decade, judicial guidance has proliferated regarding electronic discovery obligations for civil litigants. What has been less clear is whether the same obligations and standards apply to government agencies in the context of criminal investigations and prosecutions.
Recent decisions indicate that, despite the narrower scope of pretrial criminal discovery, the government may well be held to the same high standards of preservation and production of electronically stored information. This emerging trend has strategic implications for the criminal defense bar when requesting discovery from, and defending against claims brought by, government agencies.
OBLIGATIONS TO PRESERVE DOCUMENTS
A recent sanctions decision in a prominent criminal trial may portend a heightened approach to government document preservation obligations in criminal cases.
United States v. Suarez[FOOTNOTE 1] involved a wide-reaching criminal investigation and subsequent prosecution of bribery and corruption charges. During the trial of Anthony Suarez (the mayor of Ridgefield, N.J.) and a co-defendant, the court considered whether text messages exchanged between the Federal Bureau of Investigation and its informant, Solomon Dwek, should have been preserved and produced.
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Source: law.com
By: Norman C. Simon, Brendan M. Schulman, and Samantha V. Ettari
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