eLitigation at Government Agencies

Editor’s Note: Electronic litigation has been discussed for decades, yet public-sector eLitigation program maturity remains uneven across federal agencies. This article by Ashish Prasad, Giel Stein, and Anjali Prasad frames eLitigation as an end-to-end capability—people, process, and technology—then offers a practical roadmap for agencies seeking repeatable, defensible execution through standardization, dedicated support teams, documented procedures, defined roles, structured communications, and training. The discussion references DOJ’s emphasis on electronic litigation proficiency and connects operational disciplines (including EDRM-aligned workflows) to litigation outcomes and public-interest expectations.

Industry News – eDiscovery Beat

eLitigation at Government Agencies

Ashish Prasad, Giel Stein, and Anjali Prasad

Practitioners who write about litigation have paid far too little attention to electronic litigation (“eLitigation”)² at government agencies since the early 2000s, when eLitigation became a larger issue in agency litigation and investigations, due to amendments to the Federal Rules of Civil Procedure for eDiscovery that were applicable to all federal civil cases. Most writing on eLitigation has been directed toward the private sector, i.e., corporations and other large organizations, the law firms who represent them, and the parties litigating against them. Yet, eLitigation at agencies has tremendous implications for the administration of justice in the United States for many reasons, due to the public service missions of agencies, the vast amount of agency litigation in the federal courts, and the centrality of agency criminal prosecutions in the federal courts. It is hoped that this article generates interest on the part of practitioners who write about litigation to focus more attention on eLitigation at agencies.

Overview of eLitigation at Government Agencies

eLitigation “is a term that describes an integrated approach to litigation that encompasses the employee skills, training, and associated best practices, as well as the technology-based tools, needed to handle the identification, collection, processing, review, analysis, production, and presentation of electronic evidence. While eLitigation includes the practice of producing electronic discovery (eDiscovery), it goes well beyond production and encompasses the entire lifecycle of electronic evidence.”³

There is a wide disparity across federal government agencies with respect to eLitigation capabilities, availability of resources and maturity. Some agencies, such as the U.S. Department of Justice (“DOJ”) and U.S. Federal Trade Commission (“FTC”), have advanced tools, services and training in place for eLitigation, and are continually improving in this area.⁴ Other agencies have little or no tools, services or training in place for eLitigation, and are conducting litigation and investigations using practices that are geared toward the world of paper discovery. Most agencies fall somewhere in between these poles.

Recognizing this spectrum, this article assumes that the reader has a basic understanding of what eLitigation is, why it is important, the legal requirements for electronic discovery (“eDiscovery”), and how those legal requirements are being satisfied at present. For readers who wish to get more up to speed on the basics of eDiscovery, there are many excellent materials available on procedures developed by the eDiscovery industry to achieve reliable results in the stages of the Electronic Discovery Reference Model (“EDRM”).⁵

• Identification. Potential sources of electronic information are located and their scope, breadth and depth are determined.⁶
• Preservation. Electronic information is protected against inappropriate alteration or destruction.⁷
• Collection. Electronic information is gathered for further use in the electronic discovery process, such as in processing and review. ⁸
• Processing. The volume of electronic information is reduced and converted to forms more suitable for review and analysis.⁹
• Review. Electronic information is evaluated for relevance and privilege.¹⁰
• Analysis. Electronic information is evaluated for content and context, including key patterns, topics, people and discussion.¹¹
• Production. Electronic information is delivered to others in appropriate forms, using appropriate delivery mechanisms.¹²
• Presentation. Electronic information is displayed before audiences at depositions, hearings and trials to elicit further information, validate existing facts or positions or persuade an audience.¹³

These procedures achieve compliance with case law and practice guidance that has developed since the late 1990s on eDiscovery requirements.¹⁴

The DOJ recognized the importance of eLitigation proficiency at agencies in 2020, and updated the Justice Manual to provide that,

[d]epartment employees and contractors whose duties relate to the investigation or litigation of criminal or civil cases – including prosecutors, civil litigators, law enforcement agents, and staff members – are expected to achieve and maintain proficiency with technological advancements in pertinent litigation-related systems and practices. It is each individual employee’s responsibility to develop and maintain the electronic litigation skills necessary to achieve just and favorable outcomes while meeting the Department’s legal and ethical obligations. Subject matter experts in the field of electronic litigation, as well as all supervisory employees, are further expected to promote proficiency within their component and in interactions across the Department by providing appropriate tools, training, guidance, supervision, and staffing to support the effective collection, management, review, production, and presentation of electronic evidence.¹⁵

The expectations of DOJ lawyers and support personnel for eLitigation are consistent with the letter, and spirit, of the lawyer ethics rules governing use of litigation technology in all federal and state cases.¹⁶

To implement its worthy eLitigation goals across the entire DOJ, the DOJ’s Office of Electronic Litigation (“eLitigation Office”) was created.

Advancing our collective capabilities will require hiring and retaining skilled personnel, acquiring advanced technology, employing best practices and sensible strategies, developing integrated Department systems that foster collaboration between investigative agents and litigators, and providing a comprehensive training program. The Department will seek substantial new resources, personnel, technology, and training-dedicated specifically to eLitigation to support the transformation to a highly proficient eLitigation practice based upon a coordinated strategy, with planning and resource acquisition decisions focused on user requirements for meeting our core litigation objectives.¹⁷

In language that has resonated across the spectrum of agencies that conduct litigation and investigations, the DOJ recognized the mission-critical nature of eLitigation proficiency:

We are falling farther and farther behind. Litigating cases in a world dominated by cell phones, laptops, social media, encrypted apps, emails, and texts requires a robust capability to intake, process, analyze, organize, produce, and present in court electronic records, data, and communications. The failure to keep pace in this rapidly changing landscape is not without consequences. We have lost or settled virtuous cases because of electronic discovery problems. Many cases are not litigated efficiently, and that reduces our overall productivity. Rather than litigate cases on the merits, our opponents often try to gain a tactical advantage in court by focusing their efforts on the alleged failure of the government to turn over all discoverable materials or proficiently handle electronic evidence and exhibits in court. To fulfill the Department’s mission, we must do better, and we will.¹⁸

Policies, Procedures and Practices for eLitigation

Agencies that recognize the important, mission-critical nature of eLitigation proficiency in their litigation and investigation matters will often begin by formulating the policies, procedures and practices to be followed by eLitigation attorneys and staff across their portfolio of matters. The establishment of policies, procedures and practices for eLitigation improves efficiencies, reduces costs, and improves quality in the litigation and investigation matters of agencies.

Below, I outline a roadmap of activities and considerations for an agency to develop and implement policies, procedures, and practices for eLitigation.

The Benefits of Standardization

The development of standardized policies, procedures, and practices for eLitigation in government agencies, which we refer to as an eLitigation program, brings many benefits. Of course, replacing an ad hoc approach where eLitigation requirements are met in specific cases without reference to larger program goals avoids “reinventing the wheel” in multiple cases every year. In addition, eLitigation activities established within a program are more organized, litigators can focus more on the substantive issues in cases, discovery productions are more complete and reliable, alleged discovery errors can be disproved or shown to be not warranting of sanctions, and new personnel can join case teams and get up to speed quickly, among other benefits.¹⁹ Judicial decisions have shown that an eLitigation program reduces the likelihood of discovery errors, which can have severe consequences in court.²⁰ An eLitigation program also helps to level the playing field between agencies and private parties in court, which is surely in the public interest.²¹

The Value of a Dedicated Group

It is generally desirable for eLitigation policies, procedures and practices to be implemented through a dedicated group within the agency, such as the Litigation Technology Units or Litigation Support Units that have been established at certain U.S. Attorney Offices.²² Without a dedicated e-discovery staff, it is likely that agency litigators and litigation support staff will not have the time, given their primary and important duties, to also handle eLitigation requirements that arise in their matters, in efficient and effective ways. A specialized eLitigation group can perform multiple functions, such as: processing case data; administering databases; effecting productions; project management of cases; training attorneys and staff; providing technical advice at case meetings and conferences; and preparing materials for courtroom presentations.²³

In response, recognizing the budget constraints that are always present at agencies, one might argue that each agency litigator should be trained to handle their own eLitigation requirements, without the need for a specialized unit, or without the need for a specialized unit that is more than a single person to support to the litigators (which is known as the “army of one” model). Experience has shown, however, that the efficiency of the agency’s litigation and investigation matters on the whole will be much improved if a dedicated group, with expertise on eLitigation, handles tasks that can be centralized, rather than each litigator handling their own eLitigation tasks.²⁴

Of course, it is critical to select the right leader for the dedicated group, and to provide the group with the necessary resources to set, implement and enforce eLitigation policies and procedures within the agency.²⁵ The leader of the specialized unit, who will often be a former litigator in the agency, can help “bridge the thought process gap” between litigation support professionals and litigators by “speaking the same language” as the litigators.²⁶ It is well known that lawyers, in both the private sector and government agencies, are often very busy and resistant to changing their workflows and practices. Long experience has shown that achieving the required changes in practices is far less likely if the leader of the dedicated group is seen as being too junior to wield authority on eLitigation matters or is seen as unable to deploy resources to “get the job done” in matters.²⁷

It is generally desirable for the dedicated group to provide legal advice to line litigation and investigation attorneys about how to achieve eLitigation best practices. This can include what arguments to make when discovery issues arise in cases, and how to make them, leveraging the experience within the dedicated group on past agency cases involving similar issues, recent developments in case law and technology the group is monitoring, and specialized knowledge. In the private sector, specialized eDiscovery advice of this nature is sometimes provided by law firm lawyers serving in the role of national coordinating counsel for discovery for corporations facing mass tort litigation. The dedicated group should go beyond providing legal advice; it should have eLitigation support services available to satisfy the actual requirements of identification and preservation, collection and processing, search, review and analysis, and production and presentation.

Documentation of Policies, Procedures and Practices

Typically, the policies, procedures and practices for eLitigation at an agency will be documented in an eLitigation Manual (“Manual”). The Manual generally could include the following components, among others: Introduction; e-Litigation Policy Statement; Legal Background; Roles and Responsibilities in the eLitigation Process; Process Flow Overview; Standard Operating Procedures (“SOPs”); Templates, Checklists and Forms; and Training and Monitoring Policy. The Manual describes the process by which the members of the eLitigation team work with the members of the case team, and interface with others, including information technology and information governance professionals, in order to accomplish all the tasks required to meet eLitigation requirements.

For example, in a situation where the agency is responding to discovery requests, the steps could include the following, with each step supported by SOPs that are required to be followed, unless documented exceptions are made.

• Conducting an initial evaluation of the matter.
• Investigating custodians and matter scope.
• Drafting and issuing legal holds.
• Beginning initial preservation of ESI and hard copy data.
• Preserving collecting and producing unstructured data.
• Initiating case team and eLitigation team discussions and meetings.
• Confirming current and additional data custodians.
• Developing search terms and other filtering criteria.
• Developing the discovery strategy for ESI and hard copy data.
• Preserving, collecting, searching, reviewing and producing hard copy data.
• Preserving, collecting, searching, reviewing and producing electronic structured data.

The tasks would be specified in detail, along with who will perform them, what will be done, when it will be done, how it will be done, and how it will be documented.

The Manual will generally utilize techniques from the discipline of project management to achieve compliance with eLitigation requirements, with an emphasis on communication and collaboration across teams, and documentation of activities.

The idea of applying project management concepts to litigation is not to impose artificial labels on what we already do, nor is the idea to add unnecessary steps to an already complex process. Rather, the goal is to make sure we take the time to plan for each phase in the case and timely communicate those plans to all the personnel who are needed to make them happen—whether that be agency counsel or their IT staff, co-counsel, internal litigation support, opposing counsel or their litigation support, or even a judge. In short, project management concepts are “aimed at adding value while reducing cost and effort.”²⁸

The Manual could provide templates for legal hold notices, data custodial interviews, data processing and delivery specifications, project intake questionnaires, review protocols, review training manuals, and other documents used to foster compliance with the requirements, as well as achieving the benefits of consistency, defensibility and forgoing “reinvention of the wheel” across the agency’s litigation and investigation matters.²⁹

Of course, the policies, procedures and practices in the Manual will generally be written in a way that is “stringent enough to be legally defensible without sacrificing the flexibility needed when the best-laid plans go wrong.”³⁰ The requirements established should not be aspirational, but capable of being satisfied by agency litigators and support teams, with any exceptions to the rules both documented and not so frequent as to swallow the rules.

There are many complexities in the development and implementation of policies, procedures and practices for eLitigation. As an example of the complexities that can arise, it is useful to consider search warrants. The general approach with search warrants is “seizure first, search second,” which results in over-collection of data at seizure, i.e., the collection of information that is highly unlikely to be relevant to investigation.³¹ The policies, procedures and practices for search warrants could include, among other things:

• Avoidance of facially defective and overbroad warrants by including particular descriptions of what will be seized, a list of the charged crimes, how what is seized is tied to charged crimes, and temporal limitations;
• A scope of review protocol for the seizing agency to separate in-scope from out-of-scope information and ensure compliance with the Fourth Amendment’s reasonableness requirements;
• Protocols to manage information produced from third parties not subject to investigation; and
• A protocol for filter reviews to address ESI from a lawyer or law firm. This would include roles and responsibilities of the filter team in relation to the case team, communication protocols between them, tracking and management of filter review data, procedures for reviewing and documenting the results of filter data, and identification of privilege holders and attorneys, among other things.³²

As another example of the complexities in the development and implementation of policies, procedures and practices for eLitigation, it is useful to consider, in criminal prosecutions, the production of material evidence by the government under United States v. Brady³³ and United States v. Giglio,³⁴ and the creation of standardized and documented procedures for these productions reflecting guidance in recent case law. Courts have looked to various features of the information produced under Brady/Giglio to evaluate whether the government “demonstrated good faith efforts to assist the defendant and put the defense team in a position to effectively review the discovery.” The features include, among others:

• Searchable electronic format;
• Table of contents/indices;
• Discovery produced early enough to allow for adequate review;
• List of hot documents;
• Production of search warrant affidavits;
• Load file;
• Unique document identifiers (e.g., Bates numbers);
• Summary exhibits provided well before trial;
• Listed potential exhibits well before trial;
• Helped trouble-shoot technical issues;
• Met with defense to address technical issues;
• Described why certain documents were produced;
• Produced some native files;
• Provided forensic images of seized hard drives;
• Identified business entities to focus on;
• Identified evidence favorable to defense;
• Identified key terms and players; and
• Listed witness statements.³⁵

Definition of Roles and Responsibilities

The policies, procedures and practices for eLitigation at an agency will generally outline the roles and responsibilities of the lawyers, litigation support personnel and others involved in the litigation or investigation matter.

As an example, in matters where the DOJ and agency counsel are working together in litigation, it will be important to define a process in the Manual that assures that each counsel gets what it needs to perform its functions. The DOJ will often focus on the law, legal strategy and tactics, and communication with opposing parties and the court; for eLitigation, this can include consulting with agency counsel regarding scope, burden, and privilege issues, preparing written responses to discovery requests, as well as motions, and negotiating with opposing parties regarding scope, priorities, and deadlines.³⁶ By contrast, agency counsel will often focus on the facts, agency interpretation of its regulations and policies, and programmatic impacts at the agency, and responding to discovery requests; for eLitigation, this can include identifying and providing information responsive to discovery requests as well as burdens imposed by requests, collecting and reviewing documents and other information responsive to requests, and providing declarations, certifications, and information regarding privilege and responses.³⁷

As another example, in matters where agency counsel alone is handling a litigation, it may be important to define in the Manual what will be done by lawyers and what will be done by support personnel. It is usually most efficient and effective for an agency to assign “heavy lifting” of eLitigation projects to litigation support team members.

Support staff can ensure that a litigation hold is issued by the litigation team to the agency and that the agency issues a litigation hold to the relevant custodians. Support staff are key to tracking those litigation holds to make sure they reach the intended recipients and that documentation of the hold—for example, the date issued or custodian responses—is complete.

Support staff can also start to line up necessary resources, including alerting any internal litigation support staff who may be needed to process data or working with litigation support and contracting personnel to start the process of retaining a contractor. They can ensure tracking logs for incoming documents and productions are created and are ready to be completed; support staff can also locate and reach out to technical staff at the client agency to discuss the collection and subsequent transfer of data to the trial team. Starting these logistical processes early in the litigation helps things flow smoothly later when more projects are taking place simultaneously and attention may be more divided. . .

Additionally, support staff should be part of discussions about the timeline of the case, the makeup of the case team (including any need for outside litigation support and coordination of that support), and the goals of the client agency and the litigation team. . .

Once plans are in place and litigation really takes off, support staff can take the lead on tracking, troubleshooting, and documenting incoming and outgoing data. This may sound like mundane or even clerical work, but make no mistake—accurately tracking data is crucial to success (and everyone’s sanity). Support staff are accustomed to tracking and are well-equipped to delve into the details and locate missing data, and frankly, they are generally better at it than attorneys, who may not be as focused on these types of details. . .³⁸

Regular Meetings and Communications of the eLitigation Team

The policies, procedures and practices for eLitigation at an agency could require regular meetings and communications between the lawyers, litigation support personnel and others involved in the matter. As an example, when the eLitigation team is created in an investigation matter, the prosecutor could bring team members together for a meeting, live if possible but remote if not, to discuss planning for the discovery. The prosecutor could lead the meetings, because “[i]t is the AUSA—not the agents—who bears the legal responsibility for complying with Brady and Giglio throughout the discovery process.”³⁹

Questions at the meeting for resolution could include, among other things,

What is the role of the discovery agent? [] What case management systems, if any, are [the] agents using? [] What is the complete universe of available electronic and physical case information? [] [T]he discovery team should discuss the case history, develop a plan for deadlines, discuss the best format for the agent’s index of case materials, and devise a workable process to take in material. Once the agents are fully informed and clear on the AUSA’s expectations, they can begin the work of collecting and organizing case materials in preparation for the intake meeting.⁴⁰

For the discovery intake meeting of the eLitigation team, best practices could include the following components, among others.

• All members of the discovery team are present. Each agent provides the AUSA with electronic records . . . for review. The meeting room is equipped with a laptop and monitor for group viewing. The AUSA opens each disc or drive, and the discovery agent talks about the scope and type of materials they provided.
• The AUSA spot tests for front-end quality assurance. . .
• Create a system for tracking intake. . .
• If the disc includes password-protected files, include the password in the agent’s index under a notes column.
• Decide which items will be processed and which items are too large or unusual for processing. Do you have a year’s worth of pole camera video? That amount cannot be processed by litigation support. Set this and other similar items aside to be copied or otherwise made available to the defense. Assign those items a single Bates stamp number for eventual tracking on your discovery table of contents.

Thereafter, “[r]olling intake meetings, scheduled in advance in weekly or monthly intervals depending on need, should occur throughout the life of [the] case.”⁴¹

The Critical Importance of Training and Education

The policies, procedures and practices for eLitigation that are defined in a Manual will likely have limited value to the agency unless a formalized training and education program is conducted. The training and education program does not simply teach legal requirements and best practices for eLitigation, which can be learned through a variety of legal industry organizations such as the Electronic Discovery Institute,⁴² Practicing Law Institute,⁴³ The Sedona Conference⁴⁴ and others. These organizations have excellent supporting materials for their educational programs that can be provided to agency counsel, litigation support personnel and others as resource materials.⁴⁵

The focus of the training and education program is to teach lawyers, litigation support personnel, IT personnel and others how to implement the protocols in the Manual to achieve the benefits of those protocols for the agency. It gives specific guidance on what steps they need to take, and when and how they need to take them, to meet the requirements set forth in the Manual.⁴⁶

The training and education program could begin with a kickoff session, which may be live but with some participants joining remotely, in which the following topics may be covered, among others.

• Legal and Ethical Requirements for eLitigation.
• The eLitigation Manual.
• Best Practices for eLitigation for Agencies as Producing Parties.
  • Identification and Preservation.
  • Collection and Processing.
  • Search, Review and Analysis.
  • Production and Presentation.
• Best Practices for eLitigation for Agencies as Requesting Parties.
• Procurement of eLitigation Tools and Services.

Generally, the kickoff session is interactive with the audience, includes panelists who are from the agency and responsible for implementing eLitigation requirements, and focuses on real-life, common scenarios in eLitigation and how to address those scenarios under the Manual. It is, above all else, practical. After the kickoff session, quarterly or bi-annual sessions can occur for training and education on the eLitigation program, at which time discussion occurs on lessons learned and process improvements, changes in legal and ethical requirements, and other topics.

eLitigation proficiency is mission-critical for government agencies that conduct litigation and investigations. Agencies that follow the roadmap set forth above for establishing policies, procedures and practices for eLitigation will improve efficiencies, reduce costs and improve quality in their matters. This will improve the administration of justice in the United States.

References

1. Ashish Prasad is Vice-President and General Counsel at HaystackID, Lecturer at the University of Michigan Law School and Co-Founder of the Government Investigation and Civil Litigation Institute. Giel Stein is Member at Clark Hill PLC and a former Special Assistant U.S. Attorney. Anjali Prasad is Partner at Prasad Legal, PLLC and a former Assistant U.S. Attorney and Assistant District Attorney. The authors would like to thank the Federal Working Group on Information Governance for hosting the 2024 conference at which some of the ideas in this article emerged.
2. eLitigation refers to the treatment of electronic evidence in litigation and investigation matters at government agencies.
3. See Greg N. Sofer, “Foreword,” 68 DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 1.
4. See, e.g., Federal Trade Commission, “Bureau of Competition Production Guide, An eDiscovery Resource,” https://www.ftc.gov/sites/default/files/attachments/bc-production-guide/bcproductionguide.pdf.
5. See EDRM Model 2.0 2023, https://edrm.net/edrm-model/current/.
6. See Robert D. Owen and Thomas Y. Allman, The Common Law Duty to Preserve ESI and the Impact of Rule 37(e), in The Federal Judges’ Guide to Discovery, at 93-109; Principle 5 and Comments 5(a) and 5(e), The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018), at 93-93, and 108-9.
7. Id.
8. See David J. Kessler and Shannon Capone Kirk, “Forensics in Civil Litigation,” in The Federal Judges’ Guide to Discovery, at 175-85.
9. See Practical Law Litigation, “E-Discovery: Processing Electronically Stored Information,” Thomson Reuters Practical Law (2023).
10. See Rishi Chhatwal, Robert Keeling, et al., “Electronic Discovery Issues,” General Counsel’s Guide to Government Investigations, 4th Ed., 2024, pp. 484-505.
11. See David J. Kessler and Shannon Capone Kirk, “The Use of Advanced Technologies in Document Review,” in The Federal Judges’ Guide to Discovery, at 161-74.
12. See David J. Kessler and Daniel L. Regard II, “Format of Production,” in The Federal Judges’ Guide to Discovery, at 186-204.
13. See EDRM Model 2.0 2023, https://edrm.net/edrm-model/current/.
14. See, e.g., The Sedona Conference TAR Case Law Primer, Second Edition, 24 Sedona Conf. J. 1 (2023); The Sedona Conference Commentary on Legal Holds, Second Edition: the Trigger & the Process, 20 Sedona Conf. J. 341 (2019); The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process, 15 Sedona Conf. J. 265 (2014); The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 15 Sedona Conf. J. 217 (2014) (collecting cases). For readers who wish to dive into the technical details, there is also a wealth of excellent materials available See, e.g., John Wilson, “Targeted Remote Collections for iOS and Android Devices: Challenges and Considerations for Sourcing Tools and Teams,” May 17, 2023, available at https://haystackid.com/webcast-targeted-remote-collections-for-ios-and-android-may-17-2023/; Michael Sarlo, et al., “TAR in the Real World: From Promise to Practicality,” January 13, 2021, available at https://haystackid.com/webcast-tar-in-the-real-world-from-promise-to-practicality-january-13-2021-2/.
15. See Justice Manual, Section 1:11.000 (Electronic Litigation Proficiency), available at https://www.justice.gov/jm/1-11000-electronic-litigation-skills-and-proficiency (emphasis supplied).
16. See, e.g., ABA Model Rule 1.1 (Competence), Comment 8 (“a lawyer should “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”); ABA Model Rule 1.6(c) (a lawyer must take reasonable efforts to prevent the “unauthorized or inadvertent disclosure” of information relating to representation of a client”); ABA Model Rule 5.3 (Nonlawyer Assistance), Comment 3 (a lawyer must make “reasonable efforts to insure that [non-lawyer] services are provided in a manner that is compatible with the lawyer’s professional obligations”); ABA Model Rule 3.4 (Preservation and Collection of ESI) (a “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value”).
17. See ”Attorney Advisor, Deputy Director of Electronic Litigation,” https://www.justice.gov/legal-careers/job/attorney-advisor-deputy-director-electronic-litigation (emphasis supplied).
18. See Greg N. Sofer, “Foreword,” 68 DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 2. See also Christine Corndorf, John Haried, Susan Cooke, Virginia Vance and Donna Miller, “Introduction,” 68 DOJ J. Fed. L. & Prac., no. 3, 2020, at pp. 5-6.
19. See Lisa Dunn and Laura L. Hall, “Building a Successful eLitigation Practice and the Case for an AUSA Leading the Charge,” DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 6; Donna Maddux and Susanne Luse, “Don’t Let Discovery Keep You Awake at Night: Best Practices for AUSAs,” DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 27 (“[E]vidence collection, tracking, and production to a U.S. Attorney’s Office (USAO) requires an organized system, a basic understanding of relevant digital platforms, robust communication between AUSAs and their support staff and agents/agencies, and a diligent criminal or civil litigation team.”).
20. See, e.g., United States v. Morgan, 493 F. Supp. 3d 171, 199 (W.D.N.Y. Oct. 8, 2020) (dismissing superseding indictment, without prejudice, because “the discovery in this case was significant, and the government failed to effectively manage that discovery”).
21. See Greg N. Sofer, “Foreword,” DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 2 (“Many of our opponents are armed with advanced technology and the help of outside contractors.”).
22. Id. at 12-13.
23. Id.
24. Id. at 17 (“[Y]ou will be taking the substantial time and effort that all your AUSAs would otherwise inefficiently spend on electronic litigation issues and reassigning it to one AUSA who will do it better and faster. You will gain overall improved efficiency and effectiveness flowing from specialization and expertise that will more than make up for the fact that an AUSA has been reassigned to improve the handling of all your office’s cases.”).
25. Id. at 23-24.
26. Id. at 20.
27. Id.
28. See Leah M. Wolfe and Laura Hunt, “Unlocking Potential: Empowering Civil Support Staff as the Key to Success in the Electronic Discovery Process,” DOJ J. Fed. L. & Prac., no. 3, 2020, at pp. 52-53 (internal citations omitted).
29. See Donna Maddux and Susanne Luse, “Don’t Let Discovery Keep You Awake at Night: Best Practices for AUSAs,” DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 28 (outlining a checklist of factors to reduce the danger that overcollection of ESI hurts a case by making it impossible to manage).
30. Id. at 13.
31. See Larry J. Wszalek, “Smart Collection When Using a Search Warrant to Seize Voluminous Electronic Evidence: Have a Strategy and Plan,” DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 97.
32. See “Filter Reviews: The Agency’s Role, Pitfalls, and Best Practices,” FEDWG Annual Conference (Feb. 22, 2024), pp. 97-104, on file with author.
33. See 373 U.S. 83 (1963).
34. See 405 U.S. 150 (1972).
35. See Criminal Case Law Update, FEDWG Annual Conference (Feb. 21, 2024), pp. 12-13, on file with author (citing United States v. Omidi, Case 2:17-cr-00661-DMG (Doc. 1041) (C.D. Cal. 4/23/2021)).
36. See “Role of Agencies in Litigation: Working as a Team,” FEDWG Annual Conference (February 21, 2024), p. 19. Id. at 10-11.
37. Id.
38. See Leah M. Wolfe and Laura Hunt, “Unlocking Potential: Empowering Civil Support Staff as the Key to Success in the Electronic Discovery Process,” 68 DOJ J. Fed. L. & Prac., no. 3, 2020, at pp. 54-58.
39. See Donna Maddux and Susanne Luse, “Don’t Let Discovery Keep You Awake at Night: Best Practices for AUSAs,” 68 DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 29.
40. Id. at pp. 31-33.
41. Id. at 33-35.
42. See www.edi.org.
43. See www.pli.edu.
44. See www.sedonaconference.org.
45. See, e.g., The Federal Judges’ Guide to Discovery (Electronic Discovery Institute, 2024); The Electronic Discovery Desk Book (Practicing Law Institute, 2016); The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018).
46. See Leah M. Wolfe and Laura Hunt, “Unlocking Potential: Empowering Civil Support Staff as the Key to Success in the Electronic Discovery Process,” DOJ J. Fed. L. & Prac., no. 3, 2020, at p. 47 (“[S]upport staff need to know why they are doing each discovery-related task and where that task fits into the eDiscovery process. This insight requires knowledge of not only what civil rules apply to each stage of discovery, but also a keen awareness of the order in which the tasks must be completed and the extent to which each step is dependent upon and interrelated with other portions of the eDiscovery process.”).

About the Authors

• Ashish Prasad is Vice-President and General Counsel at HaystackID, Lecturer at the University of Michigan Law School and Co-Founder of the Government Investigation and Civil Litigation Institute.
• Giel Stein is a Member at Clark Hill PLC and a former Special Assistant U.S. Attorney.
• Anjali Prasad is a Partner at Prasad Legal, PLLC and a former Assistant U.S. Attorney and Assistant District Attorney.

Assisted by GAI and LLM Technologies

Additional Reading

• Discovery Compliance in Health Care Fraud Investigations
• Data Mining and Breach Notification in Cyber Incident Responses
• New AI for Litigators
• AI in Judging: New Technology Platforms Improve Judicial Efficiency

Source: ComplexDiscovery OÜ