Government Not Required to Produce ESI in Manner Requested by Defendants in Cocaine Distribution Conspiracy Case

Government Not Required to Produce ESI in Manner Requested by Defendants in Cocaine Distribution Conspiracy Case

In his November 23 decision, federal Magistrate Judge Hugh Scott held that the government was not required to produce electronically stored information (“ESI”) in the manner requested by the defendants in a 24-person criminal cocaine distribution conspiracy.  Judge Scott made it clear that in the absence of a clear criminal standard, he would follow analogous civil standards for distribution of ESI.  But see Subsequently adopted standards released recently by criminal rules committee.


Defendant Damian Ard, joined by ten other defendants (including the named defendant, Briggs), moved to amend the criminal ESI Order to clarify the manner in which specific government ESI should be produced.  The original ESI Order required the government to choose between producing ESI in its native format and reproducing it in a searchable format.

Ard’s motion first sought to obtain the wiretap data in a spreadsheet containing HTML formatting.  Second, he requested all documents be processed through an optical character recognition (“OCR”) process, requiring the government to fully implement the functionality of the IPRO system.  Finally, Ard asked the Court to require that all documents produced have full-text searchability, either in their native file formats or compiled in Word, WordPerfect, or directly generated PDFs.


In his opinion, Judge Scott explained that unlike the Federal Rules of Civil Procedure, there is no specific federal criminal rule regulating the manner of ESI production.  Instead, criminal ESI production is governed by a general rule—Federal Rule of Criminal Procedure 16(d).  This rule dictates what should be produced, but remains silent as to the manner and methods to be used in production.


Noting that this case “provides an example of the perils of not having express rules about the manner and methods of criminal discovery,” Judge Scott adopted the civil standard in Federal Rule of Civil Procedure 34.  Under Rule 34, parties producing ESI may do so in any medium, or if necessary, in a “reasonably usable form.”  This includes the form used in the usual course of business or the form in which the information is ordinarily maintained.  If the responding party chooses to produce documents in the usual course of business form, that party bears the burden of demonstrating the documents were in fact maintained in that manner.


Applying the civil rules to his criminal case, Judge Scott ruled that the government should not be required to compile the first category (wiretap data spreadsheets) in a manner demanded by the defendants.  As for the second category (document production using more IPRO functions), the judge noted that using more of the IPRO features may reveal the government’s attorney work product and case theory.  This is because those features can show how a document is identified for production selection.  Last, Judge Scott denied the third category (producing documents in searchable formats) holding the ESI Order had left the choice of method of production up to the government and this is consistent with the civil procedure standard.


Judge Scott left his copious defendants with a final lesson—when it comes to the details of discovery, “the parties should work [it] out among themselves . . . and not have this Court micro-manage discovery in this case.”


For discussions of earlier ESI motions in this same case, see;



Lauren Winchester is a student at Seton Hall University School of Law (Class of 2012), where she serves as an articles editor for the Law Review and a research fellow for the Center for Policy and Research.  Lauren received a B.S. in Political Science from Carnegie Mellon University in 2009.  After graduating from Seton Hall Law, Lauren will work as an associate at Fox Rothschild LLP.


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Comments (5):

  1. Given the increasing role of technology in crime, it is extremely surprising that no standard existed yet in 2011 governing the manner of ESI production in criminal cases. It is not clear whether Rule 34, which permits parties to produce ESI in any medium or in a “reasonably usable form,” is sufficient in the criminal context. What qualifies as a “reasonably usable form” to the prosecution may not provide all of the information or functionality (eg. metadata or search functions) that a criminal defendant may need to build a proper defense. Nonetheless, the case demonstrates the important lesson that parties in civil and criminal cases should work out these specifications during the meet and confer process rather than leaving it for judicial determination. Judges, seeking to expediently dispose of discovery motions, are unlikely to grant specifications for the production of ESI that a party could have obtained by working out an arrangement with its adversary.

  2. The government often receives data information such as a wiretap or toll records directly from the service provider such as Verizon. It comes in whatever format that service provider gives thems. Often government analysts or investigators take that data and manually manipulate it for their needs such as creating spreadsheets focusing in a specific part of the data like a date in time or specific telephone number. As an attorney for the government I would argue that these are considered work product and that the defense is entited to nothing more than what the government received from the 3rd party.

  3. I find it very interesting that the court applied civil standard in this case based on the recent release of recommendations for ESI in criminal cases. See I guess the judge had no choice until these recommendations are actually adopted, but hopefully this will happen soon. It only makes sense that based on the difference between discovery in civil and criminal cases that there would be different standards. Despite applying civil standards, I agree with the judge’s lesson of encouraging parties to work out discovery disputes on their own without the courts involvement.

  4. Government attorneys may attempt to argue that the work product doctrine provides them protection, but they may be barking up the wrong tree. IF data is manipulated, this can lead to bad things, but there are procedural safeguards in place to stop this kind of thing. We as citizens have to stand up for our rights, but also understand that the laws and courts are working in our best interest to protect our freedoms. Large telecom companies provide us great services, but also handle very sensitive data. Proceed with caution.

  5. I find it hard to believe that criminal prosecutions do not warrant an additional level of protection for ESI production–especially as it pertains to wiretapping. It seems appropriate that there was a susbequent adoption of separate criminal standards. After all, the burdens of proof vary dramatically between civil and criminal cases.

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