U.S. v. O’Keefe (2008) is an influential case because it addresses ESI in criminal matters. There is no rule in the Federal Rules of Criminal Procedure (FRCrimP) related to presenting documents or ESI to the defendant in an organized fashion. No rule says the government cannot just dump documents on the defendant.
In O’Keefe, Magistrate Judge Facciola referred to the e-discovery civil rules as guidance and authority in this criminal case. The Judge noted that the Federal Rules of Civil Procedure (FRCP) was already in place and could be used as a guideline. The Judge recognized that the FRCP is not perfect but has been amended to take into account electronic documents. For example,
FRCP Rule 34 requires that you produce ESI in the same way you keep them or you must organize and label them according to the way the requesting party asks for the ESI. Accordingly, the government could not hand over a box of documents without file folders or labels, because those files are not ordinarily maintained in that manner.
Lessons for criminal law cases involving ESI for which no rules of criminal procedure exist are
When e-discovery is too technical and complex for attorneys to assess adequately, experts might be necessary to determine whether an e-discovery search is adequate.
Where Federal Rules of Criminal Procedure don’t provide guidance on the handling of large quantities of ESI in a criminal case, the FRCP should be looked to for guidance.
The FRCrimP are slowly developing in this area as ESI becomes more prevalent in criminal prosecutions. The FRCP and best practices are important guides down this path.