Sunday, March 8, 2020

Times they are a-changin': e-Discovery

Image result for bob dylan times are changing
The times they are a-changing
, no matter how much some people (you know who you are) want to cling to 2-hole punches, hide in bankers boxes, and nurse paper cuts. We receive and manage discovery electronically now. Here are three ways to cope with these a-changin' times.

First: A new mandatory rule of federal rule is in effect, Rule 16.1:

(a) Discovery Conference. No later than 14 days after the arraignment, the attorney for the government and the defendant's attorney must confer and try to agree on a timetable and procedures for pretrial disclosure under Rule 16.

(b) Request for Court Action. After the discovery conference, one or both parties may ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.

The District of Kansas Pretrial Criminal Case Management Order (with specific ESI directives) is filed in every criminal case. The order encourages the parties to meet and confer before the status conference, which is generally set about 45 days after arraignment. The new Rule, however, requires us to meet and confer within 14 days. The Kansas FPD has developed a checklist to comply with Rule 16.1 and the district’s general order.

“Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’”

Second: Once you get discovery, what do you do with it? It is encrypted, in an unrecognizable format, and needs its own hard drive. How do you even open it? We have answers. The FPD Spring CLE will focus on managing and reviewing e-Discovery. Two years ago, we had a hands-on training with National Litigation Support Team, and they are back for an encore performance in Wichita on April 16 and in Lawrence on April 17, 2020.  To register, contact

“Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled.”

Third: Now you have the discovery promised at the Rule 16.1 conference. You know how to read it because you attended the e-Discovery CLE. And you realize that it is a discovery dump that does not include the critical information that should be there. Time to litigate. One of the best sources is the Department of Justice’s own manual. It gives prosecutors detailed direction, including “Where to look: The Prosecution Team” (“Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.”); “What to Review” (the investigative agency’s files, snitch files, Giglio, and so forth); and Making Disclosures; and guidance on disclosure of electronic communications. This is a wealth of good information.

“Come writers and critics
Who prophesies with your pen
And keep your eyes wide
The chance won’t come again
 . . . . .
For the times they are a-changin’”

-- Melody

Follow the Kansas FPD on Twitter: @FedDefenderKS

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