By Sean Broderick and Kelly Scribner
Introduction
We recently spoke to a well-respected CJA panel attorney, and he mentioned he had a discovery coordinator on a multidefendant case. He did not understand how discovery coordinators were either assigned or appointed in federal CJA cases, or what his expectations should be for what the discovery coordinator could do to assist him or his fellow CJA panel counsel. After talking with him, we thought it would help to have a blog post on the current state of discovery coordination in federal criminal cases.
Hundreds of multidefendant criminal prosecutions are occurring in federal courts throughout the United States. As federal criminal defense lawyers know well, these cases frequently involve complex forms and large amount of e-discovery. Complicating matters for many individual clients in multidefendant cases is that much of the discovery produced is not relevant to them. Even so, the defense team still needs to organize and manage the discovery. It can be laborious, overwhelming and time consuming for individual defense teams to organize the discovery on their own.
To help address this issue, the Administrative Office of U.S. Courts Committee on Defender Services approved the use of national Coordinating Discovery Attorneys (CDAs) to assist with discovery coordination between the government and the defense team, and to manage the discovery for all court appointed defense attorneys in multidefendant cases. Having a CDA serve as a single point of contact for distribution of discovery, managing the discovery and coordinating the vendor relationships necessary in complex cases can be an advantage to all involved. For the courts, who are in part overseeing CJA expenditures in a case, they are understandably interested in ways to lower costs by avoiding defense teams having to duplicate basic organization and management of discovery[1]. For defense counsel, who are concentrating on the needs and interests of their particular client, and who are focusing on case strategy, a CDA can assist with uploading, centralizing, and overseeing organization of voluminous discovery. For prosecutors, having a single source of distribution of discovery for all clients makes production of discovery more efficient. They can discuss form of production with one or two knowledgeable counsel as opposed to dozens of attorneys who may have varying experience and knowledge with technology and e-discovery.
However, not all discovery coordination is the same. Districts have implemented discovery coordination in a number of ways. Historically, there have been four principal types of discovery coordinators in federal criminal cases: National Coordinating Discovery Attorneys; Local Coordinating Discovery Attorney; Joint Paralegals or Investigators; and, Litigation Support Vendors.
This blog post describes four types of discovery coordination and explains the strengths and limitations of each one from the perspective of CJA panel counsel.
National Coordinating Discovery Attorneys
National Coordinating Discovery Attorneys (CDAs) are federal criminal defense attorneys who have experience working on CJA cases. The national CDAs have been appointed by federal district judges in numerous multidefendant cases in some of the most complex litigation in the United States. Since they are appointed by district courts, they have standing to communicate directly with the government. They are experienced in participating in Rule 16.1 “meet and confers” with the prosecution. These meetings can result in CJA panel attorneys obtaining discovery from the government in more useful formats, setting deadlines for rolling productions, getting volume estimates for planning purposes, and assisting the defense teams in setting dates for events that rely upon productions (e.g. pretrial motions, motions in limine, preliminary list of exhibits and witnesses, and trial dates). CDAs provide status reports to the court regarding the status of discovery productions which can assist defense counsel with preparing their case as the court will have a third party source to notify it regarding problems and challenges with discovery production (which can result in more time or more resources to assist defense counsel in the case).
The national CDAs are managed by the National Litigation Support Team (NLST), which provides a support network for guidance on pressing technology challenges. This national support network assists the CDAs develop innovative and practical solutions focused on the needs of CJA cases. Accordingly, CDAs are knowledgeable about the types of software programs available to assist in the management of discovery and know how to effectively use technology and litigation support vendors to assist with the organization, search, review and analysis of large volumes of electronically stored information (ESI).
CDAs have project management and technical support staff proficient in industry standard technology used to organize and review discovery. Additionally, CDAs’ staff provide training and technical support to all legal teams and can assist in executing the strategies that the CDA recommends in categorizing and searching the data received. CDAs monitor the marketplace and are experienced in vetting litigation support and e-discovery vendors to make certain that vendors provide quality services at the best possible rates. They are experienced in preparing funds requests to the court for third party assistance which they can do on behalf of CJA panel attorneys. Finally, CDAs are contracted with Administrative Office of U.S. Courts, Defender Services Office, so panel counsel need not prepare funds requests to the courts for their assistance.
Though CDAs have been appointed in cases in half of the federal districts in the country, they may not have experience in your jurisdiction. Due to their workload, they are only assigned to a limited number of cases. Also, they cannot do subjective analysis of the discovery for your particular client. For example, they will not tell defense counsel “here are all the files that relate to your client.” You will still need to develop a theory of defense, and use the tools provided to search, review and prepare the defense case (but that is what you are trained to do).
Currently, CDAs provide experience, technical proficiency, dedicated staff and accountability with experience in more than 45 federal district courts.
Local Coordinating Discovery Attorneys
In several jurisdictions, districts have appointed coordinating discovery attorneys on cases. Typically, they are attorneys that the court, or those who manage the CJA panel in that jurisdiction, have identified as having e-discovery experience in criminal cases. Since they are working in their own jurisdictions, these local CDAs know the practices and the types of government discovery productions which can help them when working with CJA panel attorneys. However, they have limited experience performing discovery coordination. The local CDAs do not have experienced staff such as project managers or technical support personnel who are knowledgeable and skilled with litigation support technology to help. Due to their limited assignments to complex cases (there have only been a handful of local CDAs appointed to multidefendant cases), they are limited in their experience in vetting litigation support and e-discovery vendors, and they do not have the breadth of experience training on various technology solutions similar to the national CDAs.
Joint Paralegals or Investigators
Joint paralegals have provided discovery coordination in a number of cases. Typically, this assistance has been done informally, where the paralegal has been officially appointed to assist one attorney representing a single defendant, but with the understanding that they may assist all of the defense teams with basic organization of discovery. The advantages of joint paralegals are that they often have significant experience working with and managing discovery in their own cases, and they are familiar with litigation support technology.
Though having a joint paralegal (or investigator) provide basic organization for multiple defense teams can work, there are issues to consider upfront to improve success for everyone. One question to clarify at the inception is how they are appointed to work in the case. Typically, even if there is an understanding that a joint paralegal’s work may be used to assist multiple defense teams, practically they will be appointed to assist a single client. Defense teams need to address what work is to be done, define what specific output they expect the paralegal to provide (e.g. level of detail in joint indices, what objective information is to coded, whether they will be producing spreadsheets or word indices, etc.), and prioritization of the work. Both the attorney who is responsible for the joint paralegal (under the Professional Rule of Responsibility 5.3), and the joint paralegal need to be clear about their roles between themselves and the rest of the defense teams and be aware of potential ethical considerations that may arise. As one example, an attorney for a different client may ask the joint paralegal to do subjective analysis specific to their client, but this request could reveal case strategy that the attorney may not want to share with defense counsel representing other clients.
Joint paralegals will be limited in communicating with the government. They are not in a position to receive the discovery directly from the government, nor are they in a position to lead a Rule 16.1 conference (though they certainly can assist counsel during that meeting or process). Joint paralegals rarely have staff to assist them. They will have limited experience compared to CDAs regarding various technology challenges that may be present in a case, limited exposure to litigation support technology outside of what they have been able to use with defense counsel they have worked with, and likely have limited experience in vetting litigation support and e-discovery vendors. Finally, they will have limited or no experienced in preparing funds requests to the court for third party assistance.
Third Party Vendors
There are several vendors who have worked on CJA cases, and who have played an important role in discovery coordination in multidefendant cases. Among other things, they have served as a clearing house for discovery productions and pushing out discovery to various defense teams and providing discovery tools such as spreadsheets or online databases for use in cases. In the right situation, a good litigation support or e-discovery vendor can bring industry standard technology, security and experience along with their services. They frequently have staff who can assist in the project, so they can scale up or down depending on the size of the case.
However, most vendors do not have significant experience working on CJA cases. Most litigation support and e-discovery vendors are focused on civil litigation (especially since it is challenging to be a viable business subsisting only on CJA cases).
Similar to joint paralegals, they will not be appointed to the case, but rather appointed to assist one of the defense teams, even if it is on behalf of the other defense teams. They, and the attorney who filed the funds request for their assistance from the court, must be mindful of the ethical issues that can arise as their appointment may likely to be specific to one attorney and client.
Vendors cannot communicate with the government on format of production or issues with data provided. They will not have experience participating in Rule 16.1 “meet and confers” with the government. Though they are experienced with litigation support technology, they may default to their own solutions, even if it is a poor fit for the needs of the case. They will not be experienced vetting litigation support and e-discovery vendors to make certain that vendors provide quality services at the best possible rates, nor will they be able to prepare funds for third party assistance.
Conclusion
Whatever your situation, be it a single or multidefendant case, the NLST is available to consult with appointed counsel when considering how best to manage and organize discovery in your case.
[1] See Generally, Case-Budgeting Techniques and Other Cost-Containment Policies , https://www.fd.org/sites/default/files/cja_resources/case-budgeting-techniques-and-other-cost-containment-strategies.pdf