Over the past 12 years, the Federal Rules of Civil Procedure have undergone substantial changes to account for discovery of electronically stored information (“ESI”). But in the eyes of many, including the New York Council of Defense Lawyers (“NYCDL”) and the National Association of Criminal Defense Lawyers (“NACDL”), the Federal Rules of Criminal Procedure (“Rules”) have lagged behind. While extensive discovery conferences and detailed orders and protocols addressing all aspects of the production of ESI have become the norm in complex civil litigation, criminal defense attorneys in many federal jurisdictions, including members of the NYCDL and NACDL, believe that the Rules provide insufficient guidance for the government’s production of documents to indicted defendants. They report that defense counsel are often left to deal with massive document dumps in varying formats and with varying levels of organization. Large and confusing productions can increase the cost and burden of defending complex criminal cases exponentially – especially when accompanied by a relatively “bare bones” indictment – as defense attorneys must sift through millions of pages in an attempt to distill how the information produced might be relevant to the charges against their clients.

The Advisory Committee solution: Proposed Rule 16.1. In March of 2016, the NYCDL and NACDL jointly wrote to The Honorable Donald W. Malloy, chair of the Advisory Committee on the Federal Rules of Criminal Procedure, expressing the concerns outlined above. To remedy the issues facing defense counsel, the NYCDL and NACDL proposed amendments to Rule 16 to account for the growing complexity of discovery in federal criminal cases. In response, the Committee held a mini-conference where private practitioners, public defenders, and prosecutors worked through some of the issues raised by the NYCDL and NACDL. What emerged was Proposed Rule 16.1:

Rule 16.1. Pretrial Discovery Conference and Modification

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

(b) Modification of Discovery. After the discovery conference, one or both of the parties may ask the court to determine or modify the timing, manner, or other aspects of disclosure to facilitate preparation for trial.

The Proposed Rule’s simplicity is obvious and intentional. Essentially, the parties are instructed to “try to agree” on a discovery plan and ask the court to intervene if they cannot agree. The Report of the Advisory Committee reveals the strategy behind the simplicity, and that it was a result of productive debate amongst the Committee:

A surprising degree of consensus developed about what sort of rule was needed: something simple, that puts the principal responsibility on the lawyers, and encourages the use of the ESI Protocol, which saves time and is cost-effective for the courts.

The ESI Protocol referred to by the Advisory Committee is the “Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases,” which was developed in 2012 by the Department of Justice, the Administrative Office of the U.S. Courts, and the Joint Working Group on Electronic Technology in the Criminal Justice System (“JETWG”).

Additionally, the Committee Note indicates that the simplicity of the Proposed Rule reflects the broad spectrum of criminal cases that appear in federal court: “Simple cases may require only a brief informal conversation to settle the timing and procedures for discovery. Agreement may take more effort as case complexity and technological challenge increase.” And because technology changes rapidly, the Committee thought it best to avoid “stat[ing] specific requirements for the manner or timing of disclosure in cases involving ESI.”

The public comment period for the Proposed Rule ended on February 15, 2018. The Proposed Rule now continues on its path toward becoming effective in 2019, though it remains to be seen whether it is altered in any material way based on the comments received, which included comments from the NACDL, the Department of Justice, and the Federal Magistrate Judges Association, among others. In general, the comments were positive. Most of the comments expressed some concerns with the wording of the Proposed Rule and suggested alternative language, but they also generally agreed with its and supported its enactment in some form.

The Northern District of Illinois is ahead of the curve. While the proposed rule could have a dramatic impact in other jurisdictions, many think it could be business as usual in the Northern District of Illinois, where Local Criminal Rule 16.1(a) has been in effect for a number of years, and provides for an even more prompt and detailed discovery conference than the Proposed Rule:

(a) Discovery Conference. Within 7 days after the arraignment the United States attorney and the defendant’s attorney shall confer and attempt to agree on a timetable and procedures for the following:

(1) inspecting, copying, or photographing any of the information subject to disclosure pursuant to Fed. R. Crim. P. 16;

(2) preserving the written notes of government agents;

(3) identification and notification of evidence the United States attorney intends to introduce pursuant to Federal Rule of Evidence 404(b);

(4) the filing of a proffer made within the scope of U.S. v. Santiago, 582 F.2d 1128 (7th Circ., 1978);

(5) the filing of materials subject to 18 U.S.C. §3500; and

(6) any other preliminary matters where such agreement would serve to expedite the orderly trial of the case.

Because the Advisory Committee made clear that Proposed Rule 16.1 is does not displace any local rules, Local Rule 16.1(a) will remain the law of the land in the Northern District.

The Central District of Illinois also has a Local Criminal Rule 16.1(A), which requires the parties to meet and confer, but provides less detail regarding that conference than its Northern District counterpart:

(A) Within 7 days after the arraignment in any criminal case, the United States Attorney and the attorney(s) for the defendant(s) will confer, and, will comply with Federal Rule of Criminal Procedure 16.

The Southern District of Illinois’ Local Rules provide only that “parties in criminal cases shall comply with the Standard Order for Pretrial Discovery and Inspection.” Despite its name, the Southern District’s “Standard Order” varies from judge to judge, but typically does no more than set forth a schedule for pretrial discovery and motions.

The practical effect in Illinois federal courts. The Proposed Rule is likely to have the largest effect in the Southern District of Illinois, where the timing and nature of any conferences between the parties can vary greatly in the absence of a local rule. In the Central District, the timing of the parties’ meet and confer will not change, but practitioners anticipate that the Proposed Rule’s specific instruction to “try to agree on a timetable and procedures for pretrial disclosure,” may lead to more detailed and fulsome conferences between the Government and defense counsel.

With the detailed Local Rule 16.1(a) already in place, some practitioners believe that the Proposed Rule will have a minimal impact in the Northern District of Illinois, so long as there are not significant changes based on the public comments.  Many anticipate, however, that all Illinois federal courts, including the Northern District, will see increased use of the JETWG-crafted ESI Protocol. While the Protocol has been around for years, it is not used in most cases. The Committee’s explicit statement that “counsel should be familiar with best practices,” including the ESI Protocol, will likely motivate attorneys and judges to make more use of its recommendations.

But the ESI Protocol can only go so far. There is a material difference between production of ESI in civil and criminal cases, in that the majority of the ESI produced by the U.S. Attorney’s Office (“USAO”) is not its own. This ESI is typically obtained from third parties via grand jury subpoenas, and the USAO generally produces it in the format received. While the USAO can – and does – exercise control over the format of production received by providing detailed instructions to subpoena recipients, that process necessarily does not involve the defense attorneys. As such, the USAO rarely – if ever – will have a situation analogous to a complex civil case where the parties engage in hours-long phone calls to hammer out every detail of ESI production before the first documents are collected or produced.

The prosecution and defense bars in the Northern District enjoy a good working relationship. Any issues with the timing and format of discovery in criminal cases are typically addressed in an informal manner and nearly always without court intervention. Only time will tell if the Proposed Rule encourages the parties to formalize these agreements in ESI Protocols more frequently, provides defense attorneys more confidence to demand specific document production formats, or results in parties seeking court intervention more frequently if they are not able to reach consensus when their demands are not met.