ISYS Personal is a file content searching program available to CJA Panel attorneys (see: CJA Panel Attorney Software Discounts post). We’ve created a brief video that demonstrates how the product works.
Editor’s Note: Penny Marshall is currently in private practice, focusing on Law and Technology. Previously she was the Federal Defender for the Federal Public Defender Office for the District of Delaware. Her practice has also included the federal and local level in the District of Columbia and a year and a half stint in the state of Georgia. She has served as President of the Association of Federal Defenders and Chair of the Third Circuit Lawyers Advisory Committee. In addition, she is an adjunct faculty member at Widener Law School and has served as guest faculty at both Harvard Law School and Benjamin Cardoza School of Law.
Imagine that the government has provided you with 50 DVD’s, a stack of paper amounting to more than a 100,000 documents, an ample number of CD’s and a list several hundred witnesses. If you instinctively start to prepare by hiring enough paralegals to print out all of documents on the DVD’s, put them all in manila folders, and then hope that you or your smart energetic personnel will remember, in the middle of cross-examination, exactly where a particular impeaching statement is located, then this blog is certainly for you.
Even in the less complex cases, there is increasing reliance by prosecutors on digital discovery rather than forwarding a stack of reports and pictures. And certainly the video and audio of our clients providing visual and audio support for the government case will be represented in a digital fashion.
In the new technological age more and more the government is able to “over paper” a case by putting any and all documents on electronic media and challenge YOU to find what is truly relevant. More and more the government is following the way of our civil counterparts, who have long used technology as a way to organize and present their case. We, as defense lawyers are prime to catch up.
At different stages of litigation there are several advantages to the use of technology:
- Generally, the first advantage is that technology allows all of your information to be stored and organized in a compact easy to find location. Almost gone are the days of moving numerous boxes from one location to the other to be copied and filed.
- The next advantage is that the digital approach allows for your documents to be searched, either by looking in the digital file or by a program that blitzes through numerous documents to find one name or one crucial word. Tiny print, upside down lettering and even handwriting can be deciphered.
- A third advantage is that technology is a less costly way of presenting evidence. For example: compare for example a FBI model versus using a computer program to reconstruct a crime scene. Also think of the flexibility!
- Fourth, technology organization requires you to focus on your case in advance. Rather than place the paper in an accordion file and bringing it out close to trial, electronics says you must consider the parts of the case in advance.
The fact that we are in a visual age cannot be understated. TV, Text, Laptops, PCs, Phones, Tablets all require us to stare at electronic screens. Each of these compete for our attention by making more and more exciting bells and whistles. Check out the lines in front of an Apple store once a new “iDevice” is revealed.
Even though jury duty is a diversion from the normal life for our citizenry, many jurors are regular consumers who expect theatrics in the courtroom. I must admit that, at first, I went kicking and screaming that I was not fully comfortable with tech in the courtroom, but having tried complex cases where it was an absolute necessity and experienced the impact of it in even the more modest case, I am an absolute convert. Think about it, even if you are one of the great lawyers of the day, jurors may tire of your voice in a long case with significant documents, especially if you are asking the Court’s indulgence to find your trial evidence!!
Editor’s Note: Justin Murphy is a counsel at Crowell & Moring’s Washington, D.C. office, where he practices in the White Collar & Regulatory Enforcement Group and E-Discovery and Information Management Group. Justin’s practice focuses on SEC enforcement, white collar criminal matters, e-discovery matters relating to internal and government investigations, and related civil litigation. He has represented clients in both federal and state criminal proceedings, including state trial panel work in Maryland. Justin has a wealth of expertise in electronic discovery issues in government investigations and criminal litigation, having both written and presented on the subject. In this blog entry, Justin discusses United States v. Doe, a big win for AFPD Chet Kaufman of the Florida Northern Federal Public Defender Office.
by: Justin P. Murphy, Counsel, Crowell & Moring LLP
In an important decision that could have significant implications for government enforcement, the Eleventh Circuit ruled that a suspect could not be required to decrypt his computer hard drives because it would implicate his Fifth Amendment privilege and amount to the suspect’s testifying against himself.
In United States v. Doe, the government seized hard drives that it believed contained child pornography. Some of the hard drives were encrypted, and the suspect refused to decrypt the devices, invoking his Fifth Amendment right against self-incrimination. The Eleventh Circuit held that compelling the suspect to decrypt and produce the drives’ contents “would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Moreover, the government could not force a suspect to decrypt and produce the information where it could not identify with “reasonable particularity” the existence of certain files, noting that an “act of production can be testimonial when that act conveys some explicit or implicit statement of fact that certain materials exist, are in the subpoenaed individual’s possession or control, or are authentic.” The court also rejected the government’s attempt to immunize production of the drives’ contents because the government acknowledged that “it would use the contents of the unencrypted drives against” the suspect.
This decision appears to limit government investigators’ ability to compel an individual to reveal the contents of devices encrypted with passwords or codes in a criminal investigation based only on government speculation as to what data may be contained in certain files. Although a corporation or partnership does not enjoy Fifth Amendment protection, individuals and sole proprietorships do, and this decision could have a significant impact on small businesses and individuals who work in highly regulated industries including health care, government contracting, energy, chemicals, and others that may face government scrutiny.
For a copy of the decision, please click here.
The Administrative Office/Department of Justice Joint Working Group on Electronic Technology (JETWG) has announced the development of a recommended ESI protocol for use in federal criminal cases. Entitled “Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases“, it is the product of a collaborative effort between representatives from the Defender Services program and DOJ and it has DOJ leadership’s full support.
The primary purpose of the ESI protocol is to facilitate more predictable, cost-effective, and efficient management of electronic discovery and a reduction in the number of disputes relating to ESI. What this means for federal defenders and the CJA panel is that there is now a mechanism, through a meet and confer process, to address problems a receiving party might have with an ESI production early in a case, and to discuss the form of the discovery that they receive. The participants on both sides of JETWG are intimately familiar with the day-to-day challenges attorneys face in criminal cases, and the protocol reflects a pragmatic approach to the problems both prosecutors and defense attorneys face when dealing with electronic discovery.
The protocols were negotiated and drafted over an 18-month period by JETWG which has representatives from the Federal Defender Offices, CJA Panel, Office of Defender Services, and DOJ, with liaisons from the United States Judiciary. Andrew Goldsmith, the DOJ National Criminal Discovery Coordinator, and I (Sean Broderick) serve as co-chairs. Donna Elm, Federal Public Defender for the Middle District of Florida, Doug Mitchell, CJA Panel Attorney District Representative for the District of Nevada, Bob Burke, Chief of the Training Branch for Office of Defender Services, and Judy Mroczka, Chief of the Legal and Policy Branch for Office of Defender Services round out the membership on the Defender Services side of the joint working group.
The ESI protocol was directly impacted by input provided by FDO and CJA panel attorneys, FDO technology staff, paralegals, investigators in the field. In addition, we received comments and input on draft versions of the Recommendations from different working groups compromised of Federal Defenders and CJA panel representatives (just as DOJ did on their side).
The Recommendations consist of four parts:
- an Introduction containing underlying principles, with hyperlinks to related recommendations and strategies;
- the Recommendations themselves;
- Strategies and Commentary that address technical and logistical issues in more detail and provide specific advice on discovery exchange challenges; and
- an ESI Discovery Production Checklist.
In general, the agreement is designed to encourage early discussion of electronic discovery issues through “meet and confers,” the exchange of data in industry standard or reasonably useable formats, notice to the court of potential discovery issues, and resolution of disputes without court involvement where possible.
We are excited about this announcement. Although almost all information is now created and stored electronically, the discovery provisions of the Federal Rules of Criminal Procedure are largely silent on this issue. At the same time there is a void because criminal cases, just like civil cases, are impacted by our shift from a paper to a digital-based society. We believe that this is an important step towards addressing the ESI challenges that people can face in a federal criminal case, if not now, certainly in the future.
We expect to continue the collaborative process with DOJ, and look forward to an ongoing dialogue with people in the field who are dealing with electronic discovery.
With ever rising volumes of discovery data, increasingly legal teams are looking for solutions that can assist them manage the amount of data they need to review. In circumstances where significant amounts of ESI (Electronically Stored Information) and forensic images of hard drives are involved, one common method is to “De-NIST” discovery data sets. “De-NIST”ing can be a significant time and money saver and an important part of the discovery review process.
So what the heck does ”De-NIST” mean?
NIST is the acronym for the National Institute of Standards and Technology (website www.nsrl.nist.gov). One of NIST’s projects is the National Software Reference Library. This project is designed to identify and collect software from various sources and create a Reference Data Set (RDS). The RDS is a collection of digital signatures of known, traceable software applications.
A digital signature is like a digital fingerprint (it is also commonly referred to as a hash value). In theory, every file has a unique hash value. If two files have the same hash value they are considered duplicates.
Most software applications are comprised of multiple files. For example: when Adobe Acrobat Reader is installed there are hundreds of standard files copied to a computer’s hard drive. All of these standard install files are the same (i.e., they have identical hash values) no matter what computer they reside on. A typical computer contains hundreds of software applications. The files associated with running these applications are not user generated and hold little evidentiary value for litigation purposes. The NIST list is a database that contains over 28 Million of these file signatures.
“De-NIST”ing is the process of identifying these files so that a decision can be made if they should be set aside or removed from a discovery database. The NIST list is compared to the file signatures of the data sets within the discovery. Any file that has a signature that matches one in the NIST list can be “De-NIST”ed (identified or removed) from the collection.
While many legal review teams expect the De-NIST process to get rid of every application or system file within a data collection it is important to note that the NIST list does not contain every single system file. Though it may not remove all of the system files, it can significantly reduce the dataset, especially when working with with copies of hard drive images.
When presented with an overwhelming river of information, trying to find relevant information can feel like you’re panning for gold. De-NIST’ing can help to identify or get rid of the much of the water, stones and muck and leave you with a much more manageable pan.
“Who, What, When” will help you figure out “Where and How”
“uninfluenced by emotions or personal prejudices; presented factually”.
This is accurate when it comes to the objective coding of documents in the not so objective world of litigation. While you may believe that having OCR for .pdfs or associated text for .tiffs gives you the searching capabilities that you need, having documents objectively coded will really allow you to refine those searches and hone in on the specific documents you are looking for.
OCR and associated text allows you to search for keywords through the entire text of the document, whereas objective coding allows you to choose specific fields where the name, word or date you are looking for exists. You also are allowed to create a list of document types (i.e. Email, Financial Record, Police Report, Memo, etc.) specific to your case so that you can identify a specific subset of documents for review. You can also combine information found in different fields to even further refine your search.
- Document Type
Your search results for a document authored by “John Smith” on “January 1, 2010” would differ tremendously depending on whether you used OCR or objective coding to run your search.
If you only used OCR for your search, you would find every single document that not only was authored by “John Smith” but in which his name appears. You would also retrieve every document in which “January 1, 2010″ appears, even if it was simply mentioned in the body of the text. This could result in an unwieldy subset of documents and not really help you identify the particular subset of documents you are looking for.
However, if your documents were objectively coded, you could simply search in the Author field for “John Smith” and in the Date field for “January 1, 2010” and find any documents that specifically fit that criteria.
If you don’t get objective coding with your discovery, ask for it. Objective coding contains objective information – facts, not opinions or ideas about a document. Opposing counsel would not be revealing any information about their case, about their case strategy or about the strengths and weaknesses of the discovery by sharing any objective coding they have done. No privilege would be breached and no attorney work product would be turned over. Rather, a win-win situation is created when the cost of capturing factual information that will equally help both parties organize and review the discovery is shared.
Part V: Running a Document Inventory
Where One Document Ends, Another Always Begins
When you receive a set of scanned documents as part of your discovery, you should be able to visualize how those documents were kept in the original custodian’s desk drawer. You should be able to identify which documents were kept together within a file folder or binder and where one document ends and the next begins. Being able to recognize the order and organization of your discovery means that the documents were properly unitized.
Having properly unitized documents is key to being able to effectively review scanned discovery. You can efficiently move from one document to the next, as well as get a sense of how the documents relate to each other. It is almost impossible to only work with just loose pages, so you should always ask for discovery to be produced to you with its proper unitization.
Keep in mind there are two types of unitization:
1. Physical Breaks:
A document can simply be defined by its physical breaks. This includes staples, paper clips, binders, folders, etc. Unitization by physical breaks is usually done at the time of scanning, as the scanning operator is able to see where the breaks exist. If you choose to unitize documents by their physical breaks, no relationships between documents are captured but it will be clear where one document ends and the next begins.
2. Logical Document Determination (LDD):
What is logical about a stack of paper that has sat in somebody’s desk for years you might ask? Whether we want to admit it or not, the way those documents were kept is often a major part of the story a litigation team is trying to tell. A common way to describe documents that are related is to say they are part of a family of documents.
If you know that a spreadsheet was clipped to a memo, even though the memo made no mention of any attached spreadsheet, you have learned a telling piece of information about the relationship between those documents.
If the documents are given to you with a load file, the load file will act as your roadmap. Typically, a production of single page .tiffs that would reflect a huge stack of loose paper if printed are accompanied by a load file that lays out where the document breaks are. If the documents have been logically unitized, the load file will also identify the parent-child attachments.
If the documents are not unitized when you receive them, you may want to contact the source and ask them for a untized set. If the source does not have a unitized set, the best option is typically to contact a litigation vendor who is familiar with the process of unitization. They usually have teams of people trained in using software specifically designed to create document breaks as well as identify document families.
Many CJA Panel attorneys have taken advantage of all that ISYS has to offer in the realm of search and retrieval and have downloaded and installed a copy of ISYS Personal Edition. It has been a year or more since many of you first received your annual license so many of those licenses are now about to expire if they haven’t done so already.
Don’t panic as we have a quick and easy fix for you.
- Download the new ISYS Personal Edition license and key file from:
- Unzip the file into the “C:\Program Files\ISYS Personal Edition” folder letting the older files get overwritten when prompted. Please note that the path may be “C:\Program Files (x86)\ISYS Personal Edition” for Windows 64-bit operating systems.
Once the old files have been replaced ISYS will be activated and usable for the remainder of 2012.
If you have any questions or concerns, please do not hesitate to contact Kelly Scribner at firstname.lastname@example.org or 510-637-3500.
- CaseMap / TimeMap / DocPreviewer Suite
- ISYS Personal Edition
We hope to continue the national contracts which encourage these deals to be offered to the CJA panel, but considering the ongoing budget limitations all deals are subject to change.
Note: Like many litigation software programs, these programs are developed for Windows based operating systems and do not work with Macintosh operating systems.
Below is a brief description of the software and the current pricing information for these programs:
CaseMap and TimeMap are two of the most popular litigation support software programs for FDOs and CJA panel attorneys. CaseMap is a fact management application used to organize, manage, and connect case facts, legal issues, key players, and documents. Because it is a single database, it allows team members to work collaboratively and store important case information in specialized relational spreadsheets for ready access and analysis. Through flexible filtering, CaseMap enables end-users to see how any person, fact, document, or issue relates to other elements in a case. TimeMap is a graphing software used to create visual timelines of case events, assisting judges and jurors in their understanding of the sequence of key events in a case. TimeMap integrates with CaseMap, allowing any record in CaseMap that has a date associated with it to be sent to TimeMap instantly. DocPreviewer is a plug-in software which allows for enhanced integration between CaseMap and Adobe Acrobat Pro.
TextMap is a transcript summary tool that can be integrated with CaseMap. TextMap offers the ability to link transcripts from case depositions, examinations, and other proceedings to case exhibits and other documents. It can also be used to play video and audio that has been synched with transcript text.
LexisNexis offers CJA panel attorneys the CaseMap/TimeMap/Doc Previewer suite for $387.50, (50% off of the current retail price) and TextMap for $161.00 (also 50% off of the current retail price). To obtain this software, contact either contact Carolyn Winiarz or Paul Brady at LexisNexis for assistance or to answer any further questions.
TrialDirector is one of the most popular electronic courtroom presentation software programs, and FDO and CJA panel attorneys have been using it in trial and evidentiary hearings for many years. TrialDirector allows attorneys to do multimedia presentations in court, including presenting imaged documents, document highlighting, document callout and zooming, cropping, annotating, multiple zoom capabilities, side by side exhibit comparison, playing audio and video, and the playing of synchronized audio/video transcripts. It allows for the importation and organization of case files including exhibits, documents, images, videotaped depositions, deposition transcripts, synchronized deposition transcripts and can be synchronized with document review databases.
inData offers CJA panel attorneys TrialDirector at a 50% discount, currently $347.50, plus a mandatory software maintenance fee of $139, for a total of $486.50 (compared to the regular price of $834 for a license and maintenance). To purchase TrialDirector, contact inData sales directly at 1-800-828-8292. Inform them that you are a CJA attorney and that you would like to purchase the TrialDirector software at the special CJA rate. There is also a 2011 CJA Panel Letter from Derek Miller, President and CEO of inData, describing the specifics of their offer to CJA panel attorneys.
ISYS Personal Edition
ISYS is a search and retrieval software program that federal defender offices (FDO) have been using for a number of years. ISYS’s information indexing capabilities provide great functionality in searching both electronic documents and materials provided in hard copy that are subsequently scanned and converted to a text searchable format (such as a searchable PDF). Its ability to search and retrieve information in more than 200 different file types offers flexibility and functionality. This provides a powerful tool to effectively search and retrieve documents and work product in the management of cases.
CJA panel attorneys are able to obtain a Personal Edition version of ISYS for free (a $100 value).
Please note that though ISYS personal edition is no longer available to the general public, ISYS does continue to provide technical support for this version of their software.
To obtain the software, please fill out an ISYS Request Form. When you are finished filling out this form, press the “submit” button on the bottom of the form. This will attach your completed form to an email message that will be sent to the Assistant National Litigation Support Administrator Kelly Scribner. You will then receive an email with download instructions and the activation code necessary to obtain your free copy of the ISYS Personal Edition Search Software. Please allow up to 5 business days to process your request.
If you have any questions regarding the utilization of any of these litigation support software programs in your office, please contact either Alex Roberts or Kelly Scribner of the National Litigation Support Team at 510-637-3500.
We all have our favorite lines from the Quentin Tarantino movie, Pulp Fiction. Mine is from the scene where Winston Wolfe, played by Harvey Keitel, arrives to clean up a mess caused by the accidental discharge of John Travolta’s handgun. As lawyers, we’re called upon to “solve problems” and help clean up messes. For me, it includes addressing how to handle terabytes of data that may include hundreds of thousands of pages of documents, tens of thousands of emails, hundreds of email attachments, tens of thousands of wire taps, body wires, GPS longitude and latitude data, hundreds of photos and many hours of video.
But as investigative methods become more sophisticated, so do the means to cull through and organize massive amounts of discovery. Picking the right tool is the key to “solving problems”. It might mean creating sortable spreadsheets or retaining the services of state-of-the art web-based document repositories.
For example, on multiple-defendant drug cases, we recommend using Excel spreadsheets to create sortable indices. One of the spreadsheets is for the line sheets and corresponding wiretap audio files. The other spreadsheet is for the remainder of the discovery and can include documents, photos, videos and body wire recordings. Counsel can sort by defendant name, date, call number or any other subject for which we have entered information. Each discovery item is hyperlinked to the spreadsheet; just sort down to a particular grouping and click on the hyperlink. The document displays, audio plays or photograph opens.
For fraud cases, which often include hundreds of thousands of pages of documents including emails, discovery can be hosted and accessed using an online document database. Multiple defense team members can access, search, sort and identify documents simultaneously using sophisticated search features. Online database programs have capacities to manage huge amounts of discovery – far greater than any desktop application. They also have features to help find key documents, tag them for their importance and even save them for later review.
I can help solve your problems. I am a CJA Panel Attorney in Seattle, Washington. I am under contract with the Administrative Office of U.S. Court, Office of Defender Services as a Coordinating Discovery Attorney (“CDA”) to support your work on multi-defendant prosecutions involving large amounts of discovery. My job is to help you strategize and implement ways to use technology to create cost effective ways to better represent clients in massive discovery cases for CJA panel attorneys and FDO staff across the country.
I evaluate each lawyer’s level of computer sophistication; identify the types of discovery involved; assist in determining how best to distribute the discovery; determine what technology and other resources are necessary for discovery review and management; and help in maintaining quality control of the discovery review process.
I focus on a limited number of cases each year that have been identified by the National Litigation Support Team (“NLST”) as needing a CDA, whether due to the complexity of the matter, the number of parties involved, or the nature and/or volume of the discovery. After an initial consultation with the NLST, and a second one with me, a decision will be made about the use of my services.
The factors that are considered in determining whether a CDA should work on a particular case are:
- Whether the number of co-defendants is so large as to create a risk of costly duplicative efforts, which could otherwise be eliminated or reduced upon the appointment of a CDA, or whether there are other factors that create a likelihood that the CDA’s participation would enable costs to be contained;
- Whether the volume of discovery is so large that addressing the Organizational needs in the case would interfere with defense counsel’s ability to address the legal and factual issues in a case;
- Whether unusual organizational or technological issues exist, not commonly found even in complex cases, that would interfere with defense counsel’s ability to address the legal and factual issues in a case;
- Whether the case is prosecuted in a region that lacks experts who can provide necessary technology support and document management expertise in addressing the factors described above;
- Whether the timing of the request, which preferably should be made early in a case, is such that the CDA’s participation is likely to be of assistance to defense counsel, promote efficiency, and contain costs; and,
- The CDA’s workload.
All these factors need not be present. Any final determination will be made by the National Litigation Support Administrator. In determining how much weight to provide each factor, the seriousness of the alleged offense will be factored into any decision.
If approved, CJA panel counsel then petitions the court for my appointment. By having the court appoint, I will have standing to confer directly with the prosecution on issues of discovery, which allows for better coordination and overall cost-efficiencies regarding information exchange. I will examine the discovery and propose a plan of action. If counsel agrees, we’re on our way. If outside services are necessary, the proposed services of vendors will be evaluated and competitive price quotes obtained. I will recommend to the court the proposed strategy and petition for the necessary funds. Throughout the project, work will be monitored to make sure it is being performed properly and in an expeditious manner.
Russell M. Aoki,
Coordinating Discovery Attorney