Author Archives: Sean Broderick

Three Types of PDFs

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PDFs (portable document format files) are a common file format in federal criminal discovery. But are all PDFs created equal? As you all have experienced, the answer is no, they are not.

Think about PDFs in three distinct categories:

  1. True PDFs;
  2. Image-based PDFs; and
  3. Made-searchable PDFs.

For discovery review, these distinctions are important because it impacts whether the PDF is searchable and the accuracy of your text searches within the PDF file. With voluminous discovery, the ability to search and review PDFs is critical for organizing and reviewing it.

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Why You Should Consider a Windows Computer and Laptop Buying Advice

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Why do we recommend having a Windows computer for CJA panel attorneys?

One of the great modern-day debates is Windows versus Apple. Like college football rivalries (think Alabama versus Auburn or UCLA versus USC), this discussion can generate intense emotions on both sides of the aisle. Add into the mix the introduction of Chromebooks (using a Chrome OS operating system), and it can be difficult for CJA panel attorneys to decide what to use in their practice.

For this conversation, let’s talk about laptops. When talking to people outside of the federal criminal defense world, we would usually say choosing a laptop depends on personal preference. You should pick the laptop that makes sense to you and allows you to be most productive. If you find you are more productive with a Mac, that’s great. People may be drawn to one operating system or the other for any number of reasons. Typically, the most important factor in choosing an operating system is which one you have used the most.  The mechanics of how that system functions will seem more intuitive to you, because you have years of experience using it.

However, for federal criminal cases, we suggest having a Windows machine available to you.

Why?

Three reasons:

  1. The Department of Justice, as well as most law enforcement agencies, use Windows computers. The systems they use to manage evidence and electronically stored information (ESI) will, by default, work on Windows machines. As a result, when they produce discovery to the defense, it will work (usually) on Windows machines.
  2. Several important software programs and digital forensics programs do not work on Macs. Examples include dtSearch, CaseMap, Cellebrite Reader (a free viewer that can speed up review of cellphone dumps) and FTK Imager (a free tool to look at computer images the government seized, so that you can see what the computer looked like to the person who used it). Now you may not need to use these tools (there are work arounds or alternatives), but it is a limitation. In addition, while many file formats can be opened on either Windows or Apple machines, such as Word documents, PDFs and PowerPoint files, there are other file types that do not work natively on Macs. For example, certain proprietary audio and video files can only be played on applications that work in Windows. Now that all discovery being provided by the U.S. Attorney’s Office is encrypted in transit, they often use tools designed to function on Windows machines and not Macs. Of course, you can try to work it out with the government, so you receive something that is Mac-friendly (and many times they will be accommodating), but it is not their default procedure.
  3. There are other costs associated with Macs. For one, PCs are often cheaper than their Mac counterparts.  Additionally, programs offered for a discount to CJA panel lawyers by the Defender Services program typically are Windows based.

Does this mean we are saying you should abandon your Mac? No. Plenty of us use both Windows and Macintosh computers at work or at home.  What we are saying is that you should consider having a Windows computer available to you to assist you in your CJA cases, as it can save you time and money in the long run.

Which laptop should I buy?

When it comes to buying a Windows laptop, there are hundreds of options.  The following minimum criteria should be considered when purchasing a new laptop:

  • 12.5 to 14-inch size screen – typically a good balance between usability and portability. This assessment is something to consider. If you are going to be mobile, go on the smaller side. If you are going to more stationary, consider the larger screen;
  • At least a Core i5 CPU;
  • At least 8 gigabytes (GB) of RAM;
  • Screen resolution of 1920 x 1080;
  • At least 500 SSD (solid state drive);
  • 8+ hours batter life;
  • Windows Professional – which gives you Bitlocker, an easy way to encrypt files and folders.

If you can afford to spend a little more, adding to these minimum specs options can result in better performance. For myself, I like to have at least a machine with Core i7 CPU, 16 gigabytes of RAM. Many of our colleagues have found that if they have a more robust machine, problems they had scrolling through large PDF files or viewing proprietary video files in their older, less powerful machines went away. However, price is always the top issue so shop around and find what works for you and your budget.

Adobe Acrobat Training Videos: Text Recognition

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Editor’s note: there is an updated Acrobat Training Guide – Text Recognition post.

Next Video – Searching Fundamentals

Adobe Acrobat Pro is one of the most popular computer software programs on the market for FDO and CJA panel attorneys.  Since so much of the discovery we currently receive in criminal cases is provided in paper or scanned paper format, Acrobat Pro is an excellent tool to help you to better organize and review it.

In our team’s continued efforts to providing resource to CJA panel attorneys and FDO staff, we are creating a series of training videos. Each short video will address a specific feature in a computer software program with our first set focused on Adobe Acrobat Pro XI.

These videos do not take the place of hands-on training sessions where we can get in depth about a variety of software programs and legal strategies for addressing complex cases, but it hopefully will provide you some basic background information that can help you in your cases.

The first video (created by Kelly Scribner and Alex Roberts) gives key information to consider when using OCR text recognition with Adobe Acrobat Pro for scanned paper. Though much has been written about the incredible functionality available with Adobe Acrobat Pro, this short seven minute demonstration focuses on points that we think are most important for you to consider when using OCR in Acrobat Pro.

Future videos we are developing will also be posted on this blog.  Make sure to check back in or sign up to subscribe to our blog to get notices of new posts by email.

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Important 11th Circuit decision regarding compelling of unencrypted data

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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.

Appeals Court Finds Encrypted Data Beyond Reach of Government Investigators

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.

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Recommendations for ESI Discovery in Federal Criminal Cases

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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:

  1. an Introduction containing underlying principles, with hyperlinks to related recommendations and strategies; 
  2. the Recommendations themselves; 
  3. Strategies and Commentary that address technical and logistical issues in more detail and provide specific advice on discovery exchange challenges; and 
  4. 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.

PDF link: Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases