CRIMINAL E-DISCOVERY A Pocket Guide for Judges

SEAN BRODERICK

National Litigation Support Administrator

Administrative Office of the U.S. Courts, Defender Services Office

DONNA LEE ELM

Federal Defender

Middle District of Florida

JOHN HARIED

Co-Chair, eDiscovery Working Group — EOUSA

U.S. Department of Justice

KIRAN RAJ

Senior Counsel to the Deputy Attorney General

U.S. Department of Justice

Federal Judicial Center

2015

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to develop educational materials for the judicial branch. While the Center 

regards the content as responsible and valuable, it does not reflect policy or recommendations 

of the Board of the Federal Judicial Center.
first printing
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Table of Contents

I. Overview............................................................................ 1

A. Lack of Criminal e-Discovery Guidance ....................... 1

B. Civil e-Discovery Rules and Practices Do Not Lend 

Themselves to Criminal e-Discovery............................. 2

C. A Practitioner’s Guide to Criminal e-Discovery............ 4

II. Common Issues in Criminal e-Discovery................. 5

A. Funding the Defendant’s e-Discovery............................ 5

B. Lack of ESI Experience, Knowledge, and Competency10

C. Necessity of Litigation Support Assistance .................. 11

D. The Workflow in Processing ESI................................. 12

E. Varieties of Evidence-Review Software ....................... 13

F. Volume of e-Discovery ................................................. 13

G. Form of Production — ESI Formats........................... 14

H. Form of Production — Paper Formats ....................... 16

I. Disorganized and Redundant ESI ................................ 17

J. Providing Incarcerated Defendants Access to e-Discovery17

K. Multiple Defendants.................................................... 18

III. Judicial Management of Criminal e-Discovery ..... 19

A. Managing Voluminous e-Discovery in Criminal Cases19

B. Early Discussion of e-Discovery Issues......................... 20

Ask About the Case................................................... 21

Advise About Expectations ....................................... 21

Advise About Resources ........................................... 22

Schedule Discovery Conferences.............................. 22

C. Subsequent Status of e-Discovery Issues...................... 22

IV. Conclusion....................................................................... 23

Appendix A: ESI Protocol Description................................ 25

Appendix B: ESI Protocol....................................................... 35

Appendix C: First Appearance e-Discovery Colloquy .... 73

Appendix D: Discovery Status Conference e-Discovery 

Colloquy ..................................................................................... 81

1

I. Overview

The rapid growth of digital technology and its spread into every facet 

of life are producing increasingly complex discovery issues in federal 

criminal cases. There are several advantages to electronically stored 

information (ESI, or e-discovery), including speed, efficiency, and 

quality of information. To ensure these benefits are realized, judges 

and lawyers working on federal criminal cases need guidance on how 

best to address e-discovery issues. 

Judges can play a vital oversight role to ensure that e-discovery 

moves smoothly, trial deadlines are met, and the parties and courts are

able to review and identify critical evidence. This pocket guide was 

developed to help judges manage complex e-discovery in criminal cases. A note of appreciation goes to Judge Xavier Rodriguez (W.D. 

Tex.), and Magistrate Judges Laurel Beeler (N.D. Cal.) and Jonathan 

W. Feldman (W.D.N.Y.), for their suggestions and advice, as well as to 

our fellow members of the Joint Electronic Technology Working 

Group, who improved this publication.

A. Lack of Criminal e-Discovery Guidance

Although the Federal Rules of Criminal Procedure offer guidance on a 

number of topics, they offer little help to judges and litigants concerning how to conduct e-discovery. As the Sixth Circuit noted in United 

States v. Warshak, Rule 16 of the Federal Rules of Criminal Procedure is 

“entirely silent on the issue of the form that discovery must take; it 

contains no indication that documents must be organized or indexed.”1 To be sure, Rule 16 provides a court the discretion to fashion discovery orders to serve the particular needs of a case, but it does 

not “specify the manner in which production is done.”2

 1. 631 F.3d 266, 296 (6th Cir. 2010). In that case, the defendant argued that 

the “district court must order the government to produce electronic discovery in a 

particular fashion.” In rejecting this argument, the court noted that there is “a 

dearth of precedent suggesting that the district court was wrong” in allowing the 

government to produce discovery in an electronic format different from what the 

defendant sought. Id.

2. See Fed. Crim. Rules Handbook § IV (Arraignment and Preparation for Trial) (Dec. 2012). 
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B. Civil e-Discovery Rules and Practices Do 

Not Lend Themselves to Criminal 

e-Discovery

The rules governing civil and criminal discovery are fundamentally

dissimilar due to the different public policies underlying criminal and 

civil litigation, constitutional requirements, and special ethical obligations of prosecutors and defense counsel. Consequently, courts have 

generally refrained from applying civil e-discovery rules to criminal 

discovery.3

An essential difference between civil and criminal discovery is 

breadth:

A criminal defendant is entitled to rather limited discovery, with no 

general right to obtain the statements of the Government’s witnesses before they have testified. Fed. Rules Crim. Proc. 16(a)(2), 

26.2. In a civil case, by contrast, a party is entitled as a general 

matter to discovery of any information sought if it appears “reasonably calculated to lead to the discovery of admissible evidence.” 

Fed. Rule Civ. Proc. 26(b)(1).4

Federal Rule of Criminal Procedure 16 does not mandate any 

mechanisms or procedures for addressing e-discovery equivalent to 

those found in Federal Rules of Civil Procedure 26 and 34. Rule 16

includes “data” as a proper object of criminal discovery, but the rule

does not address the mechanics of e-discovery.

Furthermore, the nature of the parties and proceedings differ in 

criminal cases. Unlike civil cases, where discovery is an adversarial 

process in which the government’s discovery obligations are similar to 

any litigant’s, the government has unique nonadversarial discovery 

obligations in criminal cases. As a representative of the sovereign, 

prosecutors are obliged to prosecute impartially and ensure that justice 

 3. The Sixth Circuit rejected the defendant’s argument that the electronic discovery format standards of Federal Rule of Civil Procedure 34(b)(2)(E)(i) should 

apply to criminal cases. Warshak, 631 F.3d at 296. Nonetheless, two magistrate judges have turned to civil e-discovery rules for guidance because there is a void in the 

criminal rules regarding this issue. See United States v. O’Keefe, 537 F. Supp. 2d 14, 

18–19 (D.D.C. 2008); United States v. Briggs, No. 10CR184S, 2011 WL 4017886, 

at *8 (W.D.N.Y. Sept. 8, 2011).

4. Degen v. United States, 517 U.S. 820, 825–26 (1996).
I. Overview

3

is done.5 For example, the Due Process Clause imposes a “fundamental fairness” requirement on the government’s discovery, as expressed in the government’s Brady and Giglio obligations.6 Additionally, speedy trial rights may be implicated when defendants have little 

time to come to grips with vast e-discovery.7 Similarly, defendants are 

entitled to effective assistance of counsel at trial and during plea negotiations.8 Defense counsel’s effectiveness may depend on whether he 

or she has reviewed and understands the e-discovery in time to enter 

into informed plea negotiations.9 When the government provides 

e-discovery in a reasonably organized fashion, it can help the defense 

efficiently review discovery and can lead to more productive plea discussions, less litigation, and speedier resolution of a case.

Criminal investigations and third-party subpoenas by both the 

prosecution and defense often bring vast quantities of ESI to criminal 

e-discovery. Complex ESI cases usually require litigation support resources not typically found in criminal defense practices. Indigent defendants need adequate funding to obtain those resources.

 5. ABA Model Rules of Professional Responsibility 3.8, comt. 1; see also Berger 

v. United States, 295 U.S. 78 (1935).

6. See also United States v. Bagley, 473 U.S. 667, 675 (1985) (withholding Brady

evidence violates due process). The prosecutor’s Brady obligation is addressed in 

ABA Model Rule of Professional Conduct 3.8(d) (requiring prosecutors to “make 

timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in 

connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is 

relieved of this responsibility by a protective order of the tribunal.”).

7. See U.S. Const. amend. VI; 18 U.S.C. § 3161 (“Speedy Trial Act”).

8. Lafler v. Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 

(2012).

9. Although lawyers need not review every document in a voluminous e-discovery production before entering into a plea bargain, they should review a reasonable 

and targeted portion of discovery so as to provide reasonably effective advice regarding resolution. Thus, depending upon the nature and complexity of the e-discovery, to conduct plea negotiations the defense may need to have e-discovery in a 

reasonably useable format, and have engaged in thoughtful e-discovery review.
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C. A Practitioner’s Guide to Criminal 

e-Discovery

One attempt to provide comprehensive, national guidance is the ESI 

Protocol (see Appendices A & B), which was produced by a joint 

working group composed of the Department of Justice and representatives of the criminal defense bar.10 The ESI Protocol is one approach 

for judges to use to encourage interparty cooperation and reduce the 

need for judicial intervention. Indeed, some federal district courts have 

begun integrating the ESI Protocol into their courtroom practices.11

The ESI Protocol draws on many sources, including case law, local rules, and seasoned defense and prosecution practitioners’ experience. Its goal is to provide courts and litigants with best practices consisting of general principles, recommendations, and concrete strategies 

for improving efficiency, minimizing expense, increasing security, and 

decreasing frustration and litigation. Importantly, the ESI Protocol 

does not enlarge or diminish any party’s substantive legal discovery 

obligations imposed by applicable federal statutes, rules, or case law.12

 10. The Recommendations for Electronically Stored Information Discovery 

Production in Federal Criminal Cases (hereinafter “the ESI Protocol”) was produced by the Joint Electronic Technology Working Group (JETWG), which comprises representatives of the Administrative Office of the U.S. Courts (AOUSC), 

Defender Services Office (DSO), the Department of Justice (DOJ), Federal Public 

and Community Defender Organizations (FPDOs and CDOs), private attorneys 

who accept Criminal Justice Act (CJA) appointments, and liaisons from the United 

States Judiciary and other AOUSC offices. The Federal Judicial Center does not 

endorse any specific discovery approach, including the ESI Protocol.

11. See, e.g., Best Practices for Electronic Discovery in Criminal Cases: Western 

District of Washington (Mar. 21, 2013), available at http://www.wawd.uscourts.gov/ 

sites/wawd/files/32113BESTPRACTICESFORELECTRONIC.pdf; Northern District of California, Criminal Justice Act, Capital and Non-Capital Criminal Representation (2001), available at http://www.cand.uscourts.gov/pages/965 (linking to 

the ESI Protocol).

12. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 

405 U.S. 150 (1972); 18 U.S.C. § 3500 (the “Jencks Act”); and Federal Rules of 

Criminal Procedure 16 & 26.2. 
II. Common Issues in Criminal e-Discovery

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The ESI Protocol will be familiar to most federal criminal practitioners. The Department of Justice trains its prosecutors to use the ESI 

Protocol in cases involving complex e-discovery. Most federal defenders and Criminal Justice Act (CJA) representatives receive similar

training on the ESI Protocol.

II. Common Issues in Criminal e-Discovery

Both prosecutors and defense attorneys struggle with the same e-discovery issues: large volume; a variety of sources and formats; hidden 

information (metadata and embedded data); differing formats for production; software and hardware limitations; and finding efficient, costeffective ways to review ESI. Some challenges are unique to criminal 

practice, such as incarcerated defendants’ access to e-discovery, while 

others are the same as those arising in civil practice. For many prosecutors and defense counsel, a lack of experience with ESI presents a 

significant challenge; but it is the lack of resources—money, personnel, 

training—that often overshadows all other problems. And even when

resources are available, considerable time is often required to arrange 

for and execute the processing necessary to make ESI readily available. 

For CJA counsel, the challenges of ESI may be especially daunting. Often, they are solo practitioners who lack the resources for sophisticated software tools. Because they are usually appointed postindictment, they need to get up to speed on matters that the government may have spent many months or years investigating and preparing—while at the same time getting up to speed on how to manage 

electronic discovery. Besides training and software tools, they often

may need experienced litigation support assistance, which can be provided pursuant to 18 U.S.C. § 3006A.

The following are e-discovery issues that judges may need to understand or address.

A. Funding the Defendant’s e-Discovery

There was a time when voluminous e-discovery cases were confined to

white-collar prosecutions, and those defendants typically paid the costs 
Criminal e-Discovery

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of their own defense. Today, even routine drug cases and bank robberies often involve extensive cell phone data or other ESI.13 This has 

funding consequences for indigent defendants and the court.

When a case has complex e-discovery issues, the judge considering 

a CJA appointment may need to factor in the additional cost of reviewing, organizing, and working with e-discovery.14 The Act is silent 

about when a defendant would be so destitute as to need appointed 

counsel, but the cost of working with complex e-discovery can itself exceed what many defendants can afford even if they are able to pay for 

counsel.15

Some CJA panels have formal tiers or informal lists of specialized 

lawyers for capital, financial, or immigration cases. Courts that take 

their CJA attorneys’ skills into consideration can also consider creating 

 13. Smartphone data provides an example of the magnitude of e-discovery. 

Many smartphones hold sixteen to sixty-four gigabytes of data, not including storage 

cards (which can double that amount), and have cloud access to much more data. 

They contain emails, call history and contact information, calendars, text messages, 

GPS data, photographs, videos, internet history, and social media information, all of 

which can result in thousands of potentially relevant items of discovery. Multiple-defendant cases could dramatically increase that amount. Add to that the corresponding laptops, tablets, desktops, and surveillance data also readily accessible, and 

the amount of e-discovery can quickly exceed document-based paper discovery in a 

white-collar or corporate prosecution from fifteen years ago.

14. The court can ask the government to give it early notice if the case involves 

voluminous e-discovery.

15. The Criminal Justice Act can authorize payment of e-discovery review costs 

when the extent of those costs would render a defendant unable to pay for e-discovery review regardless of whether a defendant can otherwise afford retained counsel. 

18 U.S.C. § 3006A(e)(1) allows retained counsel to apply for services to be paid 

through the CJA system. See Guide to Judiciary Policies and Procedures, Vol. VII, 

§ 310.10.20, available at http://www.uscourts.gov/rules-policies/judiciary-policies/ 

cja-guidelines/chapter-3-ss-310-general#a310_10. If outside assistance is needed, 

the protocol for authorization and payment for investigative, expert, or other services in CJA-appointed cases is governed by Vol. VII, Chapter 3 of the Guide to 

Judiciary Policies and Procedures. See http://www.uscourts.gov/FederalCourts/ 

AppointmentOfCounsel/CJAGuidelinesForms/vol7PartA/vol7PartAChapter3.aspx. 

If counsel anticipates that the costs will exceed the statutory maximum, advance 

approval should be obtained from the court and the chief judge of the circuit (or the 

active or senior circuit judge who has been delegated authority to approve excess 

compensation). See Vol. VII, § 310.20.20 for further information and a sample order, 

available at http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/ 

chapter-3-ss-310-general#a310_20. 
II. Common Issues in Criminal e-Discovery

7

a list of those lawyers who are proficient in e-discovery.16 Although 

attorneys who lack familiarity with ESI will face a learning curve, experience with cases involving large amounts of ESI over time will develop a set of CJA lawyers readily capable of handling these cases.

In multidefendant cases, the court may be able to minimize costs 

by calling for cooperative sharing among defendants. This has been 

done for years whenever there is voluminous paper discovery, and 

many of those principles can apply to electronic discovery. One of the 

defense attorneys (often the federal defender) may take the lead for 

meet-and-confer discussions with the government regarding e-discovery productions and for distributing and providing basic organization 

of ESI when the defendants enter an agreement concerning discovery. 

The court can encourage centralizing e-discovery management and 

can approve a litigation support specialist, a technologist, or a paralegal working under that lawyer’s supervision.

It also may be beneficial to place the discovery into a cloud-based

document-review platform, 17 so defendants, counsel, investigators, 

and experts can access it as needed from various locations. Depending 

on what software different CJA lawyers have, all codefendants may not 

be able to use or take advantage of the same format of ESI production.18 But any decision to rely on cloud-computing or reviewing services should include consideration of whether that service provider has 

provided adequate security to protect confidential, privileged, or oth-

 16. On the other hand, courts must decide whether to expect all panel members to be prepared to handle e-discovery on a large scale, given that every practitioner should develop a baseline comfort with e-discovery. In August 2012, the ABA 

modified its ethics rule on competency to include familiarity with technology that 

may be used in representation. Comment 8 to Model Rule 1.1 provides: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the 

law and its practice, including the benefits and risks associated with relevant technology . . . .” 

(emphasis added).

17. A document-review platform uses a database and tools to capture, organize, 

analyze, and review e-discovery. Whether stand-alone, networked, or in the cloud, 

these platforms may enable multiple individuals to securely manage and access a 

large amount of data.

18. By way of example—and not as an endorsement of either Apple computer 

systems or Microsoft Windows—one common challenge is that a number of CJApanel attorneys use Apple operating system (“Mac”) computers, but Apple systems 

work differently than the Windows computers that are standard with the DOJ and 

FDOs.
Criminal e-Discovery

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erwise sensitive e-discovery.19 The Department of Justice and the defense bar expect to address criminal e-discovery security best practices 

in the near future, but in the interim, counsel should remain vigilant in 

protecting e-discovery.

Processing “raw” ESI into usable evidence that can be reviewed 

electronically is expensive and time-consuming.20 As of 2015, in a relatively small case, processing five boxes (12,500 sheets) of paper business records costs approximately $4,800 and takes a trained DOJ litigation support professional employee three days. Similarly, processing 

twenty-five gigabytes of complex ESI costs approximately $3,200 and 

takes an employee two weeks.21 Today, there is no software tool for 

producing all discovery in a single, easy-to-use package. Hopefully that 

will change as electronic discovery matures.

Fortunately, there are resources that can provide advice and guidance to judges about cost-effective means of managing e-discovery:

• The National Litigation Support Team (NLST), part 

of the Defender Services Office (DSO) of the Administrative Office of the U.S. Courts, is available to help 

attorneys for indigent defendants struggling with extensive e-discovery. The NLST writes recommendations for funding requests, advises courts and parties 

about economical and practical solutions to e-discovery issues, and provides direct assistance to lawyers.22

 19. ESI protocol, Recommendation ¶ 10.

20. The term “processing” usually involves formatting ESI so that the native 

file can be placed into a review platform where it can be viewed, culled, organized, 

searched, and analyzed. For example, processing a native email container file (a collection of emails) involves extracting individual emails and their attachments, while 

keeping track of the relationship between the emails and attachments, and converting the files to formats that can be read through a review tool. For more information 

about processing raw ESI see infra section II.D. 

21. The 2015 market rates for processing ESI range from $125 to $150 per gigabyte.

22. Before seeking court approval for any computer hardware or software with 

a cost exceeding $800, or for utilizing computer systems, litigation support products, 

services, or experts exceeding $10,000, appointed counsel must consult with the 

DSO for guidance. CJA counsel must then inform the court in writing of the DSO’s 

advice and recommendation regarding proposed expenditures. Guide to Judiciary 

Policies and Procedures, vol. VII, § 320.70.40, available at http://www.uscourts.gov/ 
II. Common Issues in Criminal e-Discovery

9

The court can ask for assistance from the NLST.23

• The DSO has three national coordinating discovery 

attorneys (CDAs) who are experts in e-discovery, have 

experience with CJA cases, and are knowledgeable

about litigation technology. They work with CJA 

counsel and federal defenders in multidefendant cases 

to manage large volumes of e-discovery efficiently and 

cost-effectively to best fit the defendants’ needs. The 

court can ask CJA counsel to request that the case be 

referred to a CDA through the National Litigation 

Support Team.24

• All circuits except the Fifth, Eleventh, and D.C. have 

case budgeting attorneys (CBAs) who work with judges 

and CJA panel attorneys to develop and review budgets for criminal “mega cases.”25 They assist in addressing attorney and paralegal time, as well as expert, investigative, and other costs, to ensure that critical 

defense needs are budgeted to optimize resources 

while fostering high-quality, cost-controlled represen-

 FederalCourts/AppointmentOfCounsel/Viewer.aspx?doc=/uscourts/FederalCourts/ 

AppointmentOfCounsel/vol7/Vol_07.pdf. 

23. The NLST can be contacted at (510) 637-3500. Further information about 

the NLST can be found on fd.org at http://www.fd.org/navigation/litigation-sup 

port/subsections/who-is-the-national-litigation-support-team.

24. Further information regarding CDAs can be found on the J-Net at http:// 

jnet.ao.dcn/court-services/cja-panel-attorneys-and-defenders/services-coordinatingdiscovery-attorneys-available-selected-federal-criminal-justice-act-cases (not accessible to the public).

25. For CJA panel attorneys, “mega cases” are either: (a) federal capital prosecutions and capital habeas corpus cases, or (b) noncapital representations with the 

potential for extraordinary cost (attorney work expected to exceed 300 hours or total 

expenditures for attorneys and investigative, expert, and other service providers 

expected to exceed $30,000 for an individual CJA defendant). This is distinguished 

from “mega budget cases,” referring to federal and community defender office cases 

that will substantially impact their office budgets (by a 10% or $500,000 increase or 

more), so that an additional budget is developed to fund just that one case. See 

Case-Budgeting Techniques and Other Cost-Containment Policies (June 30, 2014), available at 

http://www.fd.org/docs/select-topics/cja/case-budgeting-techniques-and-other-costcontainment-strategies.pdf?sfvrsn=8.
Criminal e-Discovery

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tation. In appropriate cases, the budgets may address 

litigation support costs, and the CBAs have working 

relationships with the NLST to consult on litigation 

support matters. Judges in a district without a CBA 

can contact the DSO for assistance.26

There are considerable funding consequences to voluminous e-discovery. The court should expect additional CJA costs in these cases, 

but managing e-discovery can be done thoughtfully and reasonably to 

mitigate costs.

B. Lack of ESI Experience, Knowledge, and

Competency

Unfortunately, many criminal practitioners still do not have an adequate understanding of e-discovery issues and litigation technology. 

However, attorney competency ethics standards are evolving to require an adequate understanding of e-discovery and the technology 

needed to review it.27 Lawyers who are unfamiliar with e-discovery

can associate or consult with others who have the expertise.28 Nonetheless, they remain responsible for e-discovery decisions and should 

be able to do the following, either themselves or in association or consultation with others:

• Implement procedures to preserve potentially discoverable electronic information.

 26. Further information on case budgeting and case budgeting attorneys can be 

found on the J-Net at http://jnet.ao.dcn/court-services/cja-panel-attorneys-anddefenders/case-budgeting (not accessible to public). Judges who do not have a CBA 

in their circuit can contact the duty attorney for the Defender Services Office at 

(800) 788-9908.

27. For example, the State Bar of California issued a formal ethics opinion on 

this subject in the summer of 2015. See State Bar of Cal. Standing Comm. on Prof’l 

Responsibility and Conduct, Formal Op. No. 2015-193 (2015). This development 

follows the 2012 American Bar Association amendment to its Model Rule 1.1, stating that lawyers need to “keep abreast of changes in the law and its practice, including 

the benefits and risks associated with relevant technology.” ABA Model Rules of Professional 

Conduct, Model Rule 1.1, comt. 8 (emphasis added).

28. If a CJA attorney needs to retain expert assistance, payment would have to 

be approved by the court. 
II. Common Issues in Criminal e-Discovery

11

• Assess e-discovery needs and issues.

• Plan and perform appropriate searches.

• Understand how to manage, review, and produce e-discovery in a manner that preserves its integrity.

Because discoverable information is increasingly found and produced electronically, lawyers who are e-discovery illiterate may delay 

trial preparation. Technological “dinosaurs” may also miss potentially 

beneficial evidence, for example, by overlooking valuable metadata in 

electronic records because they are entrenched in printing their discovery. They also may make critical mistakes early in the case, inadvertently choosing production formats that they cannot use or that will 

not help find the evidence they need. When such mistakes result in not 

finding exculpatory evidence, they risk being ineffective.

The benefits of e-discovery can be lost on uninformed counsel. In 

making counsel appointments and resourcing cases, judges should be 

mindful that handling complex e-discovery cases requires an adequate 

understanding of ESI and available technology. 

C. Necessity of Litigation Support 

Assistance

In any sizeable e-discovery case, finding appropriately skilled expert 

assistance is critical to reviewing the evidence and deciding whether to 

negotiate a plea agreement or take the case to trial. Individuals with 

litigation support expertise can be found in a variety of traditional job 

roles, working as paralegals, investigators, information technology (IT) 

specialists, computer technicians, data processors, software specialists, 

and more. Finding the correct fit of litigation support staff to the case 

early is a priority.

Litigation support specialists should have legal and IT experience 

and training to organize, analyze, and present case materials through 

technology equipment and computer programs. They should have the 

ability to harvest and extract electronic data and metadata from ESI;

assist in meet-and-confer sessions regarding the exchange of ESI; monitor and manage discovery productions (both production and receipt);

provide advice on how to search data; and manage the day-to-day 

operations of strategically collecting, processing, organizing, reviewing, 
Criminal e-Discovery

12

analyzing, and presenting case data. Using both project management 

and technology, they ensure that e-discovery is handled in a cost-effective and time-efficient manner that allows for effective organization, 

easy retrieval, and quality client representation.

Just as judges should be mindful of attorney knowledge and experience in managing e-discovery, they should also be aware that even 

knowledgeable attorneys need skilled litigation support.

D. The Workflow in Processing ESI

ESI generally takes one of two possible forms: preprocessed (raw) or 

postprocessed. Some raw ESI is not ready to be reviewed electronically; it must be processed29 into a digital file that can be loaded into 

document-review software. Similarly, paper records can be processed

into electronic files like TIFFs with extracted text or searchable PDFs 

with the extracted text embedded in the file itself. 

The workflow for processing ESI can be complicated. When ESI 

is in a proprietary format (for example, a Google Mail file), it cannot 

be reviewed with industry-standard tools; instead, review requires specialized hardware, software, and expertise to convert the data into a 

form that can be reviewed with standard tools.30 Even if the discovery 

is produced in an optimal way,31 defense counsel may still need expert 

assistance, such as litigation support personnel, paralegals, or database 

vendors, to convert e-discovery into a format they can use and to decide what processing, software, and expertise is needed to assess the 

ESI. Next, the ESI should be organized to facilitate finding informa-

 29. See supra n. 20 for a definition of “processing.”

30. Many state and federal law enforcement agencies have outdated computer 

systems, so the data in these outdated systems cannot be viewed with current industry-standard litigation support software. This is particularly common with audio and 

video files, necessitating conversion to industry-standard formats. 

31. Parties should not be obstructionist and ought to produce discovery in a 

usable format if they reasonably can. According to the ESI Protocol, when a producing party elects to engage in processing ESI, the results of that processing (unless 

it contains work product) should be produced as discovery; this saves the receiving 

party the expense of replicating the work. ESI Protocol, Recommendations ¶ 6(d). 

That said, the ESI Protocol states that the government is not obligated to convert 

ESI into a format specified by the defense beyond what it would do for its own case 

preparation or discovery production.
II. Common Issues in Criminal e-Discovery

13

tion. In voluminous e-discovery cases, parties must be able to rely on 

document-review software, which can be costly. Nonetheless, it saves

money because it speeds up the review process and improves counsel’s 

ability to find information. Such software affords counsel a variety of 

search strategies, including word searches, document searches, date

searches, sender/recipient searches, concept searches, and predictive 

coding searches.32

E. Varieties of Evidence-Review Software

There is a vast array of software tools for handling all of the stages of 

electronic discovery: preserving, collecting, and harvesting data; processing and/or converting ESI; searching and retrieving information; 

reviewing ESI; and presenting evidence. There is frequently overlap 

between what various products can do. No single software tool does 

everything needed for e-discovery. Some tools specialize in processing 

raw ESI into formats that another tool can then use, while other tools 

specialize in a discrete function such as document review, strategic 

analysis, case organization, production of discovery, or evidence display in the courtroom. As a result, litigants have different collections of 

tools. That creates compatibility and conversion issues.

A meet-and-confer is an important stage in tackling those compatibility and conversion issues, particularly when the parties do not 

already have an established routine for exchanging discovery or when 

they face novel or difficult ESI issues. One goal of the meet-and-confer

is to address technical issues so that the ESI produced in discovery is 

readable and usable. An important part of that process is the parties’ 

discussion of production formats, volume, timing, and other issues.33

F. Volume of e-Discovery

The great volume of e-discovery poses a serious challenge due to the 

variety of devices on which ESI can be created and stored, the ease of 

 32. Technology-assisted review (also called predictive coding) is a process for 

prioritizing or coding a collection of documents using a computerized system that 

the harnesses human judgments of one or more subject matter expert(s) on a smaller 

set of documents, and then extrapolates those judgments to the remaining data.

33. See ESI Protocol, attached as Appendix B.
Criminal e-Discovery

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various forms of telecommunication (such as texting and social media), 

and the declining cost of storage. ESI can come from many custodians34 or sources—mobile phones, smartphones, tablets, laptops, desktops, computer network servers, external ESI storage devices (such as

flash drives or external hard drives), cloud storage, GPS tracking devices, social media. Because of this, the amount of ESI in criminal cases has grown exponentially, and this growth is expected to continue, 

significantly complicating management and review of evidence. For 

example, in 2011, court-appointed defense counsel in one multidefendant case had to review discovery comprising 240,000 pages of 

documents on 19 DVDs and CD ROMS, 185 banker boxes of paper 

documents (approximately 460,000 pages), and 30 forensic images

(that is, copies) of complete computers, servers, and thumb drives 

holding approximately 4.3 terabytes of data.35 Additionally, the defendants gathered 750,000 pages of third-party information directly 

relevant to their defenses. Cases like this benefit substantially from sophisticated software and advanced review practices such as technology-assisted review.

It is important to recognize that complex ESI requiring technological assistance is not constrained to computer and white-collar fraud 

crimes. Vast amounts of ESI are found in small cases as well. Even 

relatively modest amounts of e-discovery, depending on format, can 

create obstacles to reviewing evidence. Moreover, simple cases of possession of drugs or guns, for example, can involve smartphones and 

computers containing gigabytes or even terabytes of data. Lawyers

unaided by technology cannot review this much data. 

G. Form of Production—ESI Formats

The format in which ESI is gathered affects how the data can be used. 

For example, text messages collected as text-only files can be searched 

for particular words or combinations of words. But if the metadata for

those same text messages is also gathered, then thousands or millions 

of text messages can not only be searched for particular words, they 

 34. In e-discovery terms, “custodian” refers to the person whose data was collected.

35. Applying litigation support standard calculations, 4.3 terabytes of data is 

the equivalent of 215 million pages, or 86,000 banker boxes, of documents.
II. Common Issues in Criminal e-Discovery

15

can also be sorted by date, custodian, and author or addressee, and 

software can plot who communicated with whom, how frequently, 

when, and where. Such information can have tremendous utility in 

criminal cases.

Lawyers need specialized litigation software to work with ESI in its 

many formats. For example, they need software to review ESI documents, which can be as basic as a PDF viewer or far more complex. 

Most document-review platforms allow parties to view many file types. 

The DOJ and most civil law firms have managed their own discovery 

materials with software programs and technical personnel for years. 

Criminal defense practitioners, especially those involved in indigent 

defense, are relative latecomers to this world. Most CJA panel attorneys do not have litigation support software that can view and organize TIFF or native file productions. Similarly, most do not have tools

to take advantage of a “load file,”36 extracted metadata, or files in native or near-native ESI format.37 It is only recently that federal defender offices gained that capability nationally. As a result, the DOJ 

may be able to produce discovery in a reasonably usable format, but 

CJA counsel may not be able to utilize the most robust litigation software available. To provide computer-challenged defense counsel with 

reasonably useable e-discovery, the U.S. Attorney’s Office typically 

provides e-discovery on disks that contain software for viewing, searching, and tagging documents. For more sophisticated defense counsel, 

the DOJ typically creates load files or otherwise configures its e-discovery productions in industry-standard formats. Of course, there are instances where typical practices do not work well, and those are proper 

subjects for a meet-and-confer.

To benefit from the information available in e-discovery, attorneys

must know what format the original data was in, what formatting options are available, and how those options affect their potential review 

 36. A load file is a cross-reference file used to import images or data into databases. A data load file may contain Bates numbers, metadata, paths to native files, 

coded data, and extracted or OCR text. An image load file may contain document-boundary, image-type, and path information. Load files must be obtained and 

provided in software-specific formats to ensure they can be used by the receiving 

party.

37. A significant advantage to web-hosted document-review platforms for the 

CJA panel is that IT support is provided by the vendor, since most do not have 

in-house IT staff.
Criminal e-Discovery

16

of the data. Attorneys who do not understand the various formats 

should consult with a litigation support or IT expert before receiving 

or processing their e-discovery.

H. Form of Production—Paper Formats

Some contemporary records and many historical records only exist on 

paper. Converting paper discovery to electronic formats makes it easier to duplicate, exchange, and search. But converting voluminous paper records takes time and money. Accurate document breaks (also 

known as document unitization38) too frequently are not captured 

when scanning paper records. When this happens, document unitization is lost, diminishing the utility of the resulting electronic files. Although the producing party is not obligated to reformat paper records 

into an electronic form,39 in some cases both parties may save time 

and money by converting paper into electronic formats. Cost sharing 

may be an option if the parties agree that scanning serves both sides.

Scanning a paper record and making it searchable through optical

character recognition (OCR) software is an improvement over leaving 

it in paper form, but it is not a perfect solution. Scanning can be prohibitively expensive. Moreover, OCR programs have established error 

rates, decreasing the accuracy and reliability of electronic searches of 

documents. That unreliability causes some attorneys to default to using 

their own eyes to search rather than scanning paper records for electronic review.

Today, some records custodians’ systems still are configured to 

produce subpoenaed records in paper, even when they have the same 

data electronically. If a records custodian is willing to produce the information in an electronic format, the electronic version usually will 

yield more reliable searches.40 However, what is efficient and afforda-

 38. Document unitization is the process of determining where a document begins (its first page) and ends (its last page), with the goal of accurately describing what 

was a “unit” as it was received by the party or was kept in the ordinary course of 

business by the document’s custodian.

39. See ESI Protocol, Principle 6.

40. There are several options for electronic formats. Sometimes the records 

custodian can produce the native-format version, for example, a Word document as 

a Word file as opposed to a paper document or a PDF. Sometimes the native format 
II. Common Issues in Criminal e-Discovery

17

ble for records custodians, and what electronic formats they are willing 

or able to produce, varies widely. 

I. Disorganized and Redundant ESI

E-discovery can come from records custodians as a disorganized and 

redundant jumble. That sometimes arises from how custodians store 

their data: multiple versions of the same computer record may coexist 

in unrelated computer systems, especially with cloud computing. Custodians may not be aware that copies of files exist in different parts of 

their system since files are often copied or backed up automatically

without user interaction. With the ease of web communication, the 

multitude of different mobile devices, and inexpensive storage, ESI is 

frequently copied, recopied, forwarded, backed up, and archived 

many times over, resulting in multiple copies of the same files. Unlike 

paper records, where information was actively managed by records 

custodians who culled records to save money, there is often little need 

to organize ESI and delete duplicates or drafts. Although no single

software quickly solves the issue of disorganized and redundant ESI, 

there are workflow processes combined with different types of software 

that can assist counsel in reducing duplicates, organizing the materials,

and identifying the most relevant information more quickly than having a human look at every page.

J. Providing Incarcerated Defendants

Access to e-Discovery

Defendants in pretrial detention face significant e-discovery challenges. 

Their rights to assist in their defense and confront the evidence against 

them contemplate reviewing that evidence. When out of custody, they 

can use their own (or their attorney’s) computers to review electronic 

 is proprietary, and requires a proprietary viewer. Many video recording systems are 

proprietary. In some instances, a records custodian can produce a “near-native” 

version. For example, Google Mail (Gmail) is a web-based email system. For production, a Gmail file can be converted to an .msg file format that can be readily 

viewed. Alternatively, a document can be produced as an electronic TIFF image 

with extracted text that can be loaded into a database and electronically searched. 

Or documents can be converted to a searchable Adobe PDF format.
Criminal e-Discovery

18

discovery. When detained, their access to computers often is very limited. Although jails have long had policies for managing inmates’ paper discovery, most do not have policies allowing inmates to review 

electronic discovery. Moreover, when the detention facilities do not 

have computers readily available for inmate evidence review, acceptable equipment and software must be purchased for incarcerated defendants to use. Although defender offices are budgeted for such 

equipment, CJA attorneys may need the court to fund equipment purchases or rentals.

Providing defendants in-custody access to technology that allows 

them to review their e-discovery reduces attorney time and costs. 

When incarcerated defendants cannot review e-discovery on their own 

time, the attorney or investigator has to bring a laptop or tablet containing the e-discovery to a jail visit and maintain control of the device

while allowing the defendant to review the evidence, resulting in many 

hours of time billed to the CJA appropriations. Additionally, defendants may be able to locate critical evidence much more quickly than 

defense team members who are unfamiliar with the documentation. 

By reviewing and discussing evidence early, defendants help their 

counsel prioritize the investigation and limit the data that must be reviewed. This also creates more meaningful meetings, allowing both 

counsel and defendant to make timely decisions. 

Jails have legitimate security and staffing interests in preventing 

inmates from having unfettered access to computers. A joint DOJ and 

defense attorney working group is studying the risks and benefits of 

allowing inmates access to computers for e-discovery review. They 

hope to produce practical recommendations. In the interim, consultation between the government, the defense, and the particular facility is 

most likely to result in an acceptable solution. 

K. Multiple Defendants

Multidefendant, high-volume e-discovery cases are fertile ground for

generating discovery disputes that require a judge’s attention. For example, fraud cases involving multiple defendants may include millions 

of pages of documents. Multiple-defendant drug cases tend to have 

fewer documents, but they typically make up for that with wiretaps, 

surveillance photos and videos, text messages, GPS data, and social 
III. Judicial Management of Criminal e-Discovery

19

media. These discovery items cannot be readily searched for defendant-specific materials without the use of litigation technology software. 

Even with software, it can take considerable time to review and analyze such complex and voluminous information.

With so many variables in play, multidefendant prosecutions may 

develop more conflicts over discovery than single-defendant prosecutions. One attorney may request additional information about the alleged criminal enterprise to receive more context about the case, while 

another may request different forms of production. Defense counsel 

may disagree with each other about formats of production, how the 

evidence is indexed and organized, and what information they are 

searching for. Prosecutors can find themselves caught in the middle of 

these competing demands and may not be able, or may not believe it 

is reasonable or affordable, to agree to varying (and potentially conflicting) defense counsel requests. This situation is ripe for pretrial 

e-discovery disputes. Judges can encourage the parties to attempt to 

resolve disputes without resorting to motion practice but may still be 

called upon to adjudicate competing discovery interests, especially 

where the government is subject to conflicting requests.

III. Judicial Management of Criminal e-Discovery

A. Managing Voluminous e-Discovery in 

Criminal Cases

As discussed earlier, voluminous e-discovery cases present difficult 

challenges for prosecutors and defense counsel. Depending upon the 

lawyers’ familiarity with e-discovery, the court may need to exercise 

oversight in such cases. The ESI Protocol addresses the most common 

e-discovery issues, and the court can direct the parties to the ESI Protocol for guidance. Often, e-discovery disputes are simply the result of 

the lawyers’ inexperience with e-discovery or their misunderstanding 

of technical terminology. Knowing that the lawyers are knowledgeable 

about e-discovery and/or that they have qualified litigation support, 

IT, or paralegal assistance will be of great assistance to judges managing these cases. 
Criminal e-Discovery

20

One key to success with these cases is addressing e-discovery issues 

early. Missteps at the outset of the case are costly to unwind or correct, 

and they waste time and money. To get the parties to address e-discovery issues early, the ESI Protocol recommends three steps:

1. At the outset of the case, the parties should meet and

confer about the nature, volume, and mechanics of 

producing e-discovery.41

2. At the meet-and-confer, the parties should address 

what is being produced; a table of contents; the forms 

of production; volume; software and hardware limitations; inspection of seized hardware; and a reasonable 

schedule for producing e-discovery.42

3. The producing party transmits its e-discovery in sufficient time to permit reasonable management and review, and the receiving party should be proactive 

about testing the accessibility of the ESI when it is received.43

Although the Federal Rules of Criminal Procedure do not specify 

when evidence must be produced, some judges find it useful to have 

standing orders that direct the parties to come up with a discovery 

plan when dealing with complex e-discovery matters. 

To get the parties started on the right foot, the court may want to 

address the topic of e-discovery at one of the initial hearings, even before the parties have conducted their first meet-and-confer session. A 

discovery status conference can be scheduled after the meet-and-confer takes place. Proposed colloquies are offered in Appendices C and D.

B. Early Discussion of e-Discovery Issues

There are four steps courts can take early on in a large e-discovery

criminal case. First, the court can ask the parties questions to ascertain 

what issues they are facing. Second, the court can be clear about its

expectations for parties handling voluminous e-discovery. Third, the 

 41. ESI Protocol, Recommendations ¶ 5.

42. ESI Protocol, Strategies ¶ 5.

43. ESI Protocol, Strategies ¶ 5(o).
III. Judicial Management of Criminal e-Discovery

21

court can advise the parties of resources available to assist them. Finally, the court can schedule a discovery status conference as needed.

Ask About the Case: Appendix C offers a sample colloquy for 

the first appearance in the case. The court can ask the government the 

threshold question of whether this is a case in which the volume 

and/or nature of the e-discovery significantly increases the complexity 

of the case. In cases with court-appointed counsel, the answer may 

help the court decide whom to appoint and what resources and assistance appointed counsel may need.44 Once both parties appear, the 

court can ask whether the parties have already addressed e-discovery 

issues, as that may obviate the need for further court involvement. The 

court can further ask if the parties are familiar with the ESI Protocol; if 

not, the prosecutor can provide a copy to defense counsel.

Advise About Expectations: Given the varying levels of experience and comfort with e-discovery and technology, as well as the 

rapid evolution of litigation software, the court can make clear from 

the outset its expectations for the lawyers in a complex e-discovery

case. 

Appendix C sets forth a list of reasonable expectations for the 

lawyers. These include the following:

• The lawyers should have an adequate understanding 

of e-discovery such that they can identify, communicate on, and solve common e-discovery problems and 

determine what forms of production are possible, how 

different software products and services can assist in 

the particular case, and what costs and cost savings 

result from their choices. The lawyers should be sufficiently familiar with the capabilities and limitations of 

software and services in order to select appropriate 

software and outside assistance. Lawyers can, of 

course, rely on experts to consult and advise them on

what programs to use and what staff to retain.

 44. See section II.A, supra, regarding funding electronic discovery.
Criminal e-Discovery

22

• Although the court will encourage parties to obtain 

technical assistance, the lawyers are ultimately responsible for decisions involving e-discovery.

• The parties will meet and confer once they have secured expert assistance. A meet-and-confer discussion 

should occur well before any discovery status conference. When appropriate, the lawyers should bring experts with them to the meet-and-confer to address the 

technical aspects of e-discovery.

Advise About Resources: Public defenders and CJA counsel in 

multidefendant, complex e-discovery cases can petition the court to 

appoint a coordinating discovery attorney. If the court appointed 

counsel (either an assistant federal defender or a CJA panel attorney), 

counsel can contact the NLST for assistance.45

Schedule Discovery Conferences: Complex e-discovery cases 

may benefit from one or more discovery conferences, as the court 

deems appropriate.

C. Subsequent Status of e-Discovery Issues

Appendix D has a proposed colloquy for discovery status conferences. 

If status conferences are held, the judge can check on the progress of 

e-discovery. Depending on what the parties report has transpired since 

the last proceeding, the judge may remind them of the court’s expectations as well as remind them of the resources available to them. Additionally, particular issues may arise that should be addressed in-depth. 

Despite strong encouragement from the bench and the best intentions of the parties, the lawyers may not have conducted a meaningful 

meet-and-confer session. The Seventh Circuit’s civil e-discovery pilot 

project revealed that many litigants are not diligent about conducting 

effective meet-and-confer sessions.46 Even if meetings take place, if inexperienced lawyers did not bring expert assistance, or did not address 

 45. See section II.A, supra, for further discussion of the Defender Services Office’s National Litigation Support program.

46. Seventh Circuit Electronic Discovery Pilot Program: Final Report on Phase 

Two 77, available at http://www.discoverypilot.com/sites/default/files/Phase-TwoFinal-Report-Appendix.pdf. 
IV. Conclusion

23

the matters in any depth (a so-called drive-by meet-and-confer), then 

problems with e-discovery may not have been avoided. Although not 

every case or lawyer needs these formal meetings, the court can satisfy 

itself that the parties have worked together to ensure productive access 

to e-discovery. 

At the discovery status conference, the lawyers should provide a

discovery disclosure schedule. The judge can clarify what is expected 

in continued “rolling” discovery, and that disclosure should take place 

expeditiously, since reviewing e-discovery can be very time-intensive. 

The court should take this opportunity to advise the parties about their

discovery obligations. If the defense will have e-discovery, the court 

can check if the parties discussed that in the meet-and-confer session; if 

not, it could order a second meet-and-confer session.

There may be e-discovery issues that the parties have identified 

but have not been able to solve. If satisfied that they have tried in good 

faith to settle the matters first, the court can either decide the discovery 

dispute impromptu, or it can schedule a briefing and a discovery 

hearing. Subsequent discovery status conferences can be scheduled as 

needed.

IV. Conclusion

The purpose of this guide is to help judges give guidance and direction 

to lawyers handling complex criminal electronic discovery. It aims to 

ensure that the parties manage the case efficiently and thoughtfully, 

avoid unnecessary delay and costs occasioned by the nature of the 

e-discovery, and provide defendants full access to the evidence necessary to evaluate the case and make strategic decisions. Of course, this 

guide cannot answer every e-discovery question that will arise, so 

judges must be creative in dealing with the myriad of issues that naturally arise in this dynamic field. But this guide does offer an overall 

framework for addressing criminal e-discovery that can be adapted to

virtually every case.

Judges using this publication are encouraged to comment and propose changes to keep it current and relevant.

Appendix A

ESI Protocol Description

Appendix A: ESI Protocol Description

27

A. ESI Protocol Helps Judges with 

e-Discovery in Criminal Cases

The ESI Protocol provides practical recommendations to facilitate 

electronic evidence discovery (e-discovery or ESI) in criminal cases. It 

seeks to increase efficiency, save money, and reduce litigation over 

e-discovery issues. To accomplish these goals, the ESI Protocol creates 

a predictable framework for e-discovery discussions and production, 

and encourages the parties to resolve e-discovery disputes without 

court intervention. It was designed to be enduring and flexible by 

providing both broad principles that will apply regardless of technical 

changes and detailed guidance that can be updated as technology 

evolves. 

The ESI Protocol has four parts:

1. Principles: The 10 Principles are core tenets that set 

the framework for the recommendations and strategies, 

and they also serve as a starting place for the uninitiated. A judge can direct a lawyer to begin by reviewing 

the principles.

2. Recommendations: The 10 Recommendations address critical e-discovery topics at a policy level. They 

are based upon the principles’ core tenets, and they are 

intended to endure inevitable changes in technology. 

The recommendations are a framework for informed 

discussions between the parties about e-discovery issues.

3. Strategies and Commentary: The strategies and 

commentary section addresses the same topics as the 10 

Recommendations. It provides practical guidance on 

key practices. The strategies and commentary will 

evolve over time in response to changing technology 

and experience. This section concludes with definitions 

of e-discovery terms.

4. Checklist: This one-page checklist for lawyers and 

judges identifies the major specific topics to address at a 

meet-and-confer conference or discovery hearing.
Criminal e-Discovery

28

B. Overview of the ESI Protocol

Guiding principles. The ESI Protocol is built upon ten principles:

Principle 1:

Lawyers have a responsibility to have an adequate understanding of electronic discovery.

Principle 2:

In the process of planning, producing, and resolving disputes about ESI discovery, the parties

should include individuals with sufficient technical knowledge and experience regarding ESI.

Principle 3:

At the outset of a case, the parties should meet 

and confer about the nature, volume, and mechanics of producing ESI discovery. Where the 

ESI discovery is particularly complex or produced on a rolling basis, an ongoing dialogue 

may be helpful.

Principle 4:

The parties should discuss what formats of production are possible and appropriate, and what 

formats can be generated. Any format selected 

for producing discovery should maintain the 

ESI’s integrity, allow for reasonable usability, 

reasonably limit costs, and, if possible, conform 

to industry standards for the format.

Principle 5:

When producing ESI discovery, a party should 

not be required to take on substantial additional 

processing or format-conversion costs and burdens beyond what the party has already done or 
Appendix A: ESI Protocol Description

29

would do for its own case preparation or discovery production.

Principle 6:

Following the meet-and-confer, the parties 

should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of 

the case.

Principle 7:

The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.

Principle 8:

In multidefendant cases, the defendants should 

authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a 

coordinating discovery attorney.

Principle 9:

The parties should make good faith efforts to 

discuss and resolve disputes over ESI discovery, 

involving those with the requisite technical 

knowledge when necessary, and they should 

consult with a supervisor, or obtain supervisory 

authorization, before seeking judicial resolution 

of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
Criminal e-Discovery

30

Principle 10:

All parties should limit dissemination of ESI 

discovery to members of their litigation team 

who need and are approved for access, and they 

should also take reasonable and appropriate 

measures to secure ESI discovery against unauthorized access or disclosure.

Scope. The ESI Protocol is intended only for cases in which the 

volume and/or nature of the ESI produced as discovery significantly 

increases the complexity of the case.47 For example, cases involving a 

large volume of ESI, unique ESI issues, or multiple defendants may 

benefit from using the ESI Protocol. In simple or routine cases,48 the 

parties should provide discovery in the manner they deem most efficient in accordance with the Federal Rules of Criminal Procedure, 

local rules, and custom and practice within their district.49

Limitations. The ESI Protocol does not alter the parties’ discovery obligations or protections under the U.S. Constitution, the 

Federal Rules of Criminal Procedure, the Jencks Act, other statutes, 

case law (for example, Brady and Giglio), or local rules.50 It is not intended to serve as a basis for allegations of misconduct or claims for 

relief, nor does it create any rights or privileges for any party.51 Cases 

involving classified information have their own unique legal procedures that do not fit within the ESI Protocol.52 The ESI Protocol applies only to postindictment criminal discovery, not civil litigation or 

preindictment investigations, both of which are governed by existing 

legal standards.53

An integrated process, not rules to be enforced. The ESI 

Protocol envisions a collaborative approach to e-discovery based upon 

 47. ESI that is contraband (e.g., child pornography) requires special discovery 

procedures. See ESI Protocol, Recommendations at 2.

48. Even small amounts of ESI in an unusual or difficult format can increase 

the complexity of e-discovery, which would counsel using the ESI Protocol.

49. See ESI Protocol, Recommendations ¶ 2.

50. ESI Protocol, Recommendations ¶ 3.

51. Id.

52. ESI Protocol, Recommendations ¶ 5.

53. ESI Protocol, Recommendations, fn. 1.
Appendix A: ESI Protocol Description

31

the mutual and interdependent responsibilities of the opposing parties.54 As such, the ESI Protocol sets forth best practices for litigants, 

not a set of enforceable rules.

Balancing competing goals. As with the criminal discovery 

rules, the ESI Protocol seeks to balance competing goals. For example, 

to promote cost savings, the ESI Protocol states that if the producing 

party elects to process ESI for its own case preparation or discovery 

production, then the results of that processing should—unless they 

constitute work product—be produced in discovery to save the receiving party the expense of replicating that work. An illustration would be 

that if the producing party scans paper documents to a TIFF image 

and OCR text, then those should be provided in discovery rather than 

providing only the paper documents. Nonetheless, the producing party’s work product—for example, issue tags or document notes—should 

not be produced. Importantly, the producing party should not be required to take on substantial additional processing or format-conversion costs and burdens beyond what it has already done or would 

do for its own case preparation or discovery production.

No easy solutions. A natural human tendency when confronted with complex problems is to look for easy solutions. But the ESI 

Protocol recognizes that at this point in the evolution of e-discovery, 

there is no easy, one-size-fits-all solution.

Coordinating discovery for multiple defendants. In multiple-defendant cases, the ESI Protocol recommends that the defendants authorize one or more defense counsel to act as the discovery coordinator or seek the appointment of a coordinating discovery attorney (CDA). CDAs are Defender Services Program–contracted attorneys who have technological knowledge and experience, resources, 

and staff to assist with the effective management of complex e-discovery.55

Communication, not litigation. To reduce costs and save 

time, the ESI Protocol avoids a purely adversarial and rules-driven 

approach to e-discovery. First, the ESI Protocol recommends that the 

parties meet and confer at the outset of a case. Second, it recommends 

 54. See ESI Protocol, Introduction at 2.

55. For more information on coordinating discovery attorneys, see section 

III.A, supra, at pp. 14–15.
Criminal e-Discovery

32

communication as a precondition to filing a motion about an e-discovery issue. An aggrieved party is directed to confer with opposing counsel in a good-faith effort to resolve the dispute, and to involve individuals with sufficient knowledge to understand the technical issues, or 

sufficient authority to settle the dispute cooperatively, before filing any 

motions. If a motion is filed, the ESI Protocol suggests including a 

statement of counsel for the moving party stating that, after consultation with the opposing party, they have been unable to resolve the 

dispute without court action.

Each U.S. Attorney’s Office and Main Justice criminal component 

has one or more criminal discovery coordinators who are responsible 

for providing guidance to prosecutors on criminal discovery topics. 

Each federal and community defender office has IT or other staff and 

access to the National Litigation Support Team that can provide technical assistance in resolving discovery issues. Lawyers can take advantage of these resources to understand technical issues and facilitate 

meaningful discussion that may avoid or resolve conflicts. 

To avoid unnecessary motions practice, the ESI Protocol calls for 

supervisor participation in resolving disputes and recommends that 

prosecutors and federal and community defender offices institute internal procedures that require line prosecutors and defenders to: (1) seek 

a supervisor’s assistance in resolving an e-discovery dispute, (2) consult 

with supervisors before filing motions seeking judicial resolution of an 

e-discovery dispute; and (3) obtain a supervisor’s authorization before 

alleging that opposing counsel has engaged in any misconduct, abuse, 

or neglect concerning the production of ESI. These recommendations 

were included to ensure that the parties explored technological and 

pragmatic solutions before resorting to e-discovery litigation. Of course,

the recommendations for consulting with, or obtaining approval of, a 

supervisor do not apply to CJA or privately retained counsel.

Whether the ESI Protocol’s meet-and-confer approach will succeed in our adversarial system will depend in some measure upon 

whether judges encourage the parties to follow the ESI Protocol. At 

the least, the involvement of technically knowledgeable personnel 

should help to avoid disputes based on technological misunderstandings.
Appendix A: ESI Protocol Description

33

Parties are responsible for identifying and solving e-discovery issues. The ESI Protocol identifies the responsibilities of 

both parties. Some examples follow.

Both Parties

• When gathering ESI, think about the nature, volume, 

and mechanics of managing ESI.56

• Conduct a meet-and-confer to discuss e-discovery issues, and address eighteen specified topics as necessary.57 Use the one-page checklist to help identify possible issues.

• Discuss any issues concerning information provided in 

discovery that implicates any privilege or that is protected as confidential or personal identifying information.58

• Discuss a reasonable schedule for producing e-discovery.59

• Discuss e-discovery security if either party intends to 

make discovery electronically available to others.60

• Discuss protective orders if needed.61

• Memorialize any e-discovery agreements.62

• Give the court advance notice of any issues that will 

significantly affect the production or review of e-discovery, the need to request supplemental funds, or the 

scheduling of pretrial motions or trial.63

 56. ESI Protocol, Strategies ¶ 2.

57. ESI Protocol, Strategies ¶ 5.

58. ESI Protocol, Strategies ¶ 5(e).

59. ESI Protocol, Strategies ¶ 5(o).

60. ESI Protocol, Strategies ¶ 5(p).

61. ESI Protocol, Strategies ¶ 5(q).

62. ESI Protocol, Strategies ¶ 5(r).

63. ESI Protocol, Strategies ¶ 5(s).
Criminal e-Discovery

34

Producing Party

• When possible, produce ESI as processed to save the 

receiving party the expense of replicating the processing.64

• Create a table of contents.65

• Give the receiving party an estimate of discovery volume.66

• Identify any third-party ESI according to which device 

it came from.67

• Produce third-party ESI in the format it was received 

or in a reasonably usable format.68

• Produce discoverable materials generated by a party 

during its investigation in a searchable and reasonably 

usable format.69

• Produce a cover letter to accompany e-discovery that 

describes the number of media, the unique identifiers 

of the media, a brief description of the contents including a table of contents if created, and any Bates 

ranges or other unique production identifiers.70

Receiving Party

• Inspect e-discovery promptly after its receipt and give 

notice to the producing party of any production issues 

or problems that may impede using the e-discovery.71

 64. ESI Protocol, Recommendations ¶ 6.

65. ESI Protocol, Strategies ¶ 5(b).

66. ESI Protocol, Strategies ¶ 5(h).

67. ESI Protocol, Strategies ¶ 5(l).

68. ESI Protocol, Strategies ¶ 6(g).

69. ESI Protocol, Strategies ¶ 6(h).

70. ESI Protocol, Strategies ¶ 7(c).

71. ESI Protocol, Strategies ¶ 5(o).
Appendix B

ESI Protocol

Appendix B: ESI Protocol

37

Recommendations for Electronically

Stored Information (ESI) Discovery Production

in Federal Criminal Cases

Department of Justice (DOJ) and Administrative Office of the U.S. 

Courts (AO) Joint Electronic Technology Working Group (JETWG)

February 2012

Appendix B: ESI Protocol

39

Introduction to Recommendations for

ESI Discovery in Federal Criminal Cases

Today, most information is created and stored electronically. The advent of electronically stored information (ESI) presents an opportunity 

for greater efficiency and cost savings for the entire criminal justice 

system, which is especially important for the representation of indigent 

defendants. To realize those benefits and to avoid undue cost, disruption, and delay, criminal practitioners must educate themselves and 

employ best practices for managing ESI discovery.

The Joint Electronic Technology Working Group (JETWG) was 

created to address best practices for the efficient and cost-effective 

management of post-indictment ESI discovery between the government and defendants charged in federal criminal cases. JETWG was 

established in 1998 by the director of the Administrative Office of the 

U.S. Courts (AOUSC) and the Attorney General of the United States. 

It consists of representatives of the Administrative Office of the U.S. 

Courts, Defender Services Office (DSO), the Department of Justice 

(DOJ), Federal Public and Community Defender Organizations 

(FPDOs and CDOs), private attorneys who accept Criminal Justice 

Act (CJA) appointments, and liaisons from the United States judiciary 

and other AOUSC offices.

JETWG has prepared recommendations for managing ESI discovery in federal criminal cases, which are contained in the following 

three documents:

1. Recommendations for ESI Discovery in Federal 

Criminal Cases. The Recommendations provide the 

general framework for managing ESI, including planning, 

production, transmission, dispute resolution, and security.

2. Strategies and Commentary on ESI Discovery in 

Federal Criminal Cases. The Strategies provide technical and more particularized guidance for implementing 

the recommendations, including definitions of terms. The 

Strategies will evolve in light of changing technology and 

experience.

3. ESI Discovery Checklist. A one-page checklist for addressing ESI production issues.
Criminal e-Discovery

40

The Recommendations, Strategies, and Checklist are intended for 

cases where the volume and/or nature of the ESI produced as discovery significantly increases the complexity of the case. They are not intended for all cases. The Recommendations, Strategies, and Checklist 

build upon the following basic principles:

Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery. (See #4 of the 

Recommendations.)

Principle 2: In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI. (See #4 of the Recommendations.)

Principle 3: At the outset of a case, the parties should meet 

and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an ongoing dialogue may be helpful. (See #5 of the Recommendations and 

Strategies.)

Principle 4: The parties should discuss what formats of 

production are possible and appropriate and what formats 

can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable 

usability, reasonably limit costs, and, if possible, conform to 

industry standards for the format. (See #6 of the Recommendations and Strategies.)

Principle 5: When producing ESI discovery, a party 

should not be required to take on substantial additional processing or format-conversion costs and burdens beyond what 

the party has already done or would do for its own case preparation or discovery production. (See #6 of the Recommendations and Strategies.)

Principle 6: Following the meet-and-confer, the parties 

should notify the court of ESI discovery production issues or 

problems that they reasonably anticipate will significantly affect the handling of the case. (See #5(s) of the Strategies.)
Appendix B: ESI Protocol

41

Principle 7: The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a 

general description and maintain a record of what was transmitted. (See #7 of the Recommendations and Strategies.)

Principle 8: In multidefendant cases, the defendants should 

authorize one or more counsel to act as the discovery coordinator(s) or seek the appointment of a Coordinating Discovery 

Attorney. (See #8 of the Recommendations and Strategies.)

Principle 9: The parties should make good faith efforts to 

discuss and resolve disputes over ESI discovery, involving 

those with the requisite technical knowledge when necessary, 

and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an 

ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI. (See #9 of the Recommendations.)

Principle 10: All parties should limit dissemination of ESI 

discovery to members of their litigation team who need, and 

are approved for, access, and they should also take reasonable 

and appropriate measures to secure ESI discovery against unauthorized access or disclosure. (See #10 of the Recommendations.)

The Recommendations, Strategies, and Checklist set forth a collaborative approach to ESI discovery involving mutual and interdependent responsibilities. The goal is to benefit all parties by making 

ESI discovery more efficient and secure, and less costly.
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42

Recommendations for ESI Discovery Production

in Federal Criminal Cases

1. Purpose

These Recommendations are intended to promote the efficient and 

cost-effective post-indictment production of electronically stored information (ESI) in discovery72 between the government and defendants 

charged in federal criminal cases and to reduce unnecessary conflict 

and litigation over ESI discovery by encouraging the parties to communicate about ESI discovery issues, by creating a predictable framework for ESI discovery and by establishing methods for resolving ESI 

discovery disputes without the need for court intervention.

ESI discovery production involves the balancing of several goals:

a) The parties must comply with their legal discovery obligations; 

b) the volume of ESI in many cases may make it impossible 

for counsel to personally review every potentially discoverable item, and, as a consequence, the parties increasingly 

will employ software tools for discovery review, so ESI discovery should be done in a manner to facilitate electronic 

search, retrieval, sorting, and management of discovery 

information;

c) the parties should look for ways to avoid unnecessary duplication of time and expense for both parties in the handling and use of ESI;

d) subject to subparagraph (e), below, the producing party should 

produce its ESI discovery materials in industry-standard formats;

 72. The Recommendations and Strategies are intended to apply only to disclosure of ESI under Federal Rules of Criminal Procedure 16 and 26.2, Brady, Giglio, 

and the Jencks Act, and they do not apply to, nor do they create any rights, privileges, or benefits during, the gathering of ESI as part of the parties’ criminal or civil 

investigations. The legal principles, standards, and practices applicable to the discovery phase of criminal cases serve different purposes than those applicable to 

criminal and civil investigations.
Appendix B: ESI Protocol

43

e) the producing party is not obligated to undertake additional processing desired by the receiving party that is not 

part of the producing party’s own case preparation or discovery production73; and

f) the parties must protect their work product, privileged, 

and other protected information.

The following Recommendations are a general framework for informed discussions between the parties about ESI discovery issues. 

The efficient and cost-effective production of ESI discovery materials 

is enhanced when the parties communicate early and regularly about 

any ESI discovery issues in their case, and when they give the court 

notice of ESI discovery issues that will significantly affect the handling 

of the case.

2. Scope: Cases Involving Significant ESI

No single approach to ESI discovery is suited to all cases. These Recommendations are intended for cases where the volume and/or nature 

of the ESI produced as discovery significantly increases the complexity 

of the case.74 In simple or routine cases, the parties should provide 

discovery in the manner they deem most efficient in accordance with 

the Federal Rules of Criminal Procedure, local rules, and custom and 

practice within their district.

Due to the evolving role of ESI in criminal cases, these Recommendations and the parties’ practices will change with technology and 

experience. As managing ESI discovery becomes more routine, it is 

anticipated that the parties will develop standard processes for ESI 

discovery that become the accepted norm.

 73. One example of the producing party undertaking additional processing for 

its discovery production is a load file that enables the receiving party to load discovery materials into its software.

74. Courts and litigants will continue to seek ways to identify cases deserving 

special consideration. While the facts and circumstances of cases will vary, some 

factors may include: (1) a large volume of ESI; (2) unique ESI issues, including native 

file formats, voluminous third-party records, nonstandard and proprietary software 

formats; and/or (3) multiple-defendant cases accompanied by a significant volume of 

ESI.
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44

3. Limitations

These Recommendations and the accompanying Strategies do not 

alter the parties’ discovery obligations or protections under the U.S. 

Constitution, the Federal Rules of Criminal Procedure, the Jencks Act, 

or other federal statutes, case law, or local rules. They may not serve as 

a basis for allegations of misconduct or claims for relief, and they do 

not create any rights or privileges for any party.

4. Technical Knowledge and Experience

For complex ESI productions, each party should involve individuals 

with sufficient technical knowledge and experience to understand, 

communicate about, and plan for the orderly exchange of ESI discovery. Lawyers have a responsibility to have an adequate understanding 

of electronic discovery.

5. Planning for ESI Discovery Production—The Meetand-Confer Process

At the outset of a case involving substantial or complex ESI discovery, 

the parties should meet and confer about the nature, volume, and 

mechanics of producing ESI discovery. The parties should determine 

how to ensure that any meet-and-confer process does not run afoul of 

speedy trial deadlines. Where the ESI discovery is particularly complex or produced on a rolling basis, an ongoing dialogue during the 

discovery phase may be helpful. In cases where it is authorized, providing ESI discovery to an incarcerated defendant presents challenges 

that should be discussed early. Also, cases involving classified information will not fit within the Recommendations and Strategies due to 

the unique legal procedures applicable to those cases. ESI that is contraband (e.g., child pornography) requires special discovery procedures. 

The Strategies and Checklist provide detailed recommendations on 

planning for ESI discovery.
Appendix B: ESI Protocol

45

6. Production of ESI Discovery

Production of ESI discovery involves varied considerations depending 

upon the ESI’s source, nature, and format. Unlike certain civil cases, 

in criminal cases the parties generally are not the original custodian or 

source of the ESI they produce in discovery. The ESI gathered by the 

parties during their investigations may be affected or limited by many 

factors, including the original custodian’s or source’s information technology systems, data management practices, and resources; the party’s 

understanding of the case at the time of collection; and other factors. 

Likewise, the electronic formats used by the parties for producing ESI 

discovery may be affected or limited by several factors, including the 

source of the ESI; the format(s) in which the ESI was originally obtained; and the party’s legal discovery obligations, which may vary 

with the nature of the material. The Strategies and Checklist provide 

detailed recommendations on production of ESI discovery.

General recommendations for the production of ESI discovery are

as follows:

a. The parties should discuss what formats of production are 

possible and appropriate and what formats can be generated. Any format selected for producing discovery should, 

if possible, conform to industry standards for the format.75

b. ESI received from third parties should be produced in the 

format(s) it was received or in reasonably usable format(s). 

ESI from the government’s or defendant’s business records 

should be produced in the format(s) in which it was maintained or in reasonably usable format(s). 

c. Discoverable ESI generated by the government or defense 

during the course of their investigations (e.g., investigative 

reports, witness interviews, demonstrative exhibits, etc.) 

may be handled differently than in 6(a) and (b) above be-

 75. An example of a format of production might be the production of TIFF 

images, OCR text files, and load files created for a specific software application. 

Another format of production would be native-file production, which would accommodate files with unique issues, such as spreadsheets with formulas and databases. ESI in a particular case might warrant more than one format of production 

depending upon the nature of the ESI.
Criminal e-Discovery

46

cause the parties’ legal discovery obligations and practices 

vary according to the nature of the material, the applicable 

law, evolving legal standards, the parties’ policies, and the 

parties’ evolving technological capabilities.

d. When producing ESI discovery, a party should not be required to take on substantial additional processing or format-conversion costs and burdens beyond what the party 

has already done or would do for its own case preparation 

or discovery production. For example, the producing party 

need not convert ESI from one format to another or undertake additional processing of ESI beyond what is required to 

satisfy its legal disclosure obligations. If the receiving party 

desires ESI in a condition different from what the producing 

party intends to produce, the parties should discuss what is 

reasonable in terms of expense and mechanics, who will 

bear the burden of any additional cost or work, and how to 

protect the producing party’s work product or privileged 

information. Nonetheless, with the understanding that in 

certain instances the results of processing ESI may constitute work product not subject to discovery, these recommendations operate on the general principle that where a 

producing party elects to engage in processing of ESI, the 

results of that processing should, unless they constitute work 

product, be produced in discovery along with the underlying ESI so as to save the receiving party the expense of replicating the work.

7. Transmitting ESI Discovery

The parties should discuss transmission methods and media that promote efficiency, security, and reduced costs. In conjunction with ESI 

transmission, the producing party should provide a general description 

and maintain a record of what was transmitted. Any media should be 

clearly labeled. The Strategies and Checklist contain detailed recommendations on transmission of ESI discovery, including the potential 

use of email to transmit ESI.
Appendix B: ESI Protocol

47

8. Coordinating Discovery Attorney

In cases involving multiple defendants, the defendants should authorize one or more counsel to act as the discovery coordinator(s), or seek 

the appointment of a Coordinating Discovery Attorney,76 and authorize that person to accept, on behalf of all defense counsel, the ESI 

discovery produced by the government. Generally, the format of production should be the same for all defendants, but the parties should 

be sensitive to different needs and interests in multiple-defendant cases.

9. Informal Resolution of ESI Discovery Matters

a. Before filing any motion addressing an ESI discovery issue, 

the moving party should confer with opposing counsel in a 

good-faith effort to resolve the dispute. If resolution of the 

dispute requires technical knowledge, the parties should 

involve individuals with sufficient knowledge to understand the technical issues, clearly communicate the problem(s) leading to the dispute, and either implement a proposed resolution or explain why a proposed resolution will 

not solve the dispute.

b. The Discovery Coordinator within each U.S. Attorney’s 

Office should be consulted in cases presenting substantial 

issues or disputes.

c. To avoid unnecessary litigation, prosecutors and Federal 

Defender Offices77 should institute procedures that re-

 76. Coordinating Discovery Attorneys (CDAs) are AOUSC-contracted attorneys who 

have technological knowledge and experience, resources, and staff to effectively manage 

complex ESI in multiple-defendant cases. The CDAs may be appointed by the court to provide in-depth and significant hands-on assistance to CJA panel attorneys and FDO staff in 

selected multiple-defendant cases that require technology and document management assistance. They can serve as a primary point of contact for the U.S. Attorney’s Office to discuss ESI production issues for all defendants, resulting in lower overall case costs for the parties. If a panel attorney or FDO is interested in utilizing the services of the CDA, they should 

contact the National Litigation Support Administrator or Assistant National Litigation Support Administrator for the Office of Defender Services at 510-637-3500.

77. For private attorneys appointed under the Criminal Justice Act, this subsection (c) 

is not applicable.
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48

quire line prosecutors and defenders (1) to consult with a 

supervisory attorney before filing a motion seeking judicial 

resolution of an ESI discovery dispute, and (2) to obtain 

authorization from a supervisory attorney before suggesting in a pleading that opposing counsel has engaged in any 

misconduct, abuse, or neglect concerning production of 

ESI.

d. Any motion addressing a discovery dispute concerning ESI 

production should include a statement of counsel for the 

moving party relating that after consultation with the attorney for the opposing party, the parties have been unable to resolve the dispute without court action.

10. Security: Protecting Sensitive ESI Discovery from 

Unauthorized Access or Disclosure

Criminal case discovery entails certain responsibilities for all parties in 

the careful handling of a variety of sensitive information, for example, 

grand jury material, the defendant’s records, witness identifying information, information about informants, information subject to court 

protective orders, confidential personal or business information, and 

privileged information. With ESI discovery, those responsibilities are 

increased because ESI is easily reproduced and disseminated, and unauthorized access or disclosure could, in certain circumstances, endanger witness safety; adversely affect national security or homeland 

security; leak information to adverse parties in civil suits; compromise 

privacy, trade secrets, or classified, tax return, or proprietary information; or prejudice the fair administration of justice. The parties’ willingness to produce early, accessible, and usable ESI discovery will be 

enhanced by safeguards that protect sensitive information from unauthorized access or disclosure. 

All parties should limit dissemination of ESI discovery to members 

of their litigation team who need, and are approved for, access. They 

should also take reasonable and appropriate measures to secure ESI 

discovery against unauthorized access or disclosure.

During the initial meet-and-confer and before ESI discovery is 

produced, the parties should discuss whether there is confidential, pri-
Appendix B: ESI Protocol

49

vate, or sensitive information in any ESI discovery they will be providing. If such information will be disclosed, then the parties should 

discuss how the recipients will prevent unauthorized access to, or disclosure of, that ESI discovery, and, absent agreement on appropriate 

security, the producing party should seek a protective order from the 

court addressing management of the particular ESI at issue. The producing party has the burden to raise the issue anew if it has concerns 

about any ESI discovery it will provide in subsequent productions. 

The parties may choose to have standing agreements so that their 

practices for managing ESI discovery are not discussed in each case. 

The Strategies contain additional guidance in sections 5(f), 5(p), and 

7(e).
Criminal e-Discovery

50

Strategies and Commentary 

on ESI Discovery in Federal Criminal Cases

1. Purpose

This commentary contains strategies for implementing the ESI discovery Recommendations and specific technical guidance. Over time 

it will be modified in light of experience and changing technology. 

Definitions of common ESI terms are provided in paragraph 11, below.

2. Scope of ESI Gathered

In order to promote efficiency and avoid unnecessary costs, when 

gathering ESI, the parties should take into consideration the nature, 

volume, and mechanics of managing ESI.

3. Limitations

Nothing contained herein creates any rights or privileges for any party.

4. Technical Knowledge and Experience

No additional commentary.

5. Planning for e-Discovery Production—The Meetand-Confer Process

To promote efficient ESI discovery, the parties may find it useful to 

discuss the following:

a. ESI discovery produced. The parties should discuss 

the ESI being produced according to the following general 

categories:

i. Investigative materials (investigative reports, surveillance records, criminal histories, etc.)

ii. Witness statements (interview reports, transcripts of 

prior testimony, Jencks statements, etc.)
Appendix B: ESI Protocol

51

iii. Documentation of tangible objects (e.g., records of seized 

items or forensic samples, search warrant returns, 

etc.)

iv. Third parties’ ESI digital devices (computers, phones, 

hard drives, thumb drives, CDs, DVDs, cloud 

computing, etc., including forensic images)

v. Photographs and video/audio recordings (crime scene 

photos; photos of contraband, guns, money; surveillance recordings; surreptitious monitoring recordings; etc.)

vi. Third-party records and materials (including those 

seized, subpoenaed, and voluntarily disclosed)

vii. Title III wiretap information (audio recordings, transcripts, line sheets, call reports, court documents, 

etc.)

viii. Court records (affidavits, applications, and related 

documentation for search and arrest warrants, 

etc.)

ix. Tests and examinations

x. Experts (reports and related information)

xi. Immunity agreements, plea agreements, and similar materials

xii. Discovery materials with special production considerations

(such as child pornography, trade secrets, tax return information, etc.)

xiii. Related matters (state or local investigative materials, 

parallel proceedings materials, etc.)

xiv. Discovery materials available for inspection but not produced digitally

xv. Other information

b. Table of contents. If the producing party has not created a table of contents prior to commencing ESI discovery production, it should consider creating one describing 

the general categories of information available as ESI dis-
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52

covery. In complex discovery cases, a table of contents to 

the available discovery materials can help expedite the opposing party’s review of discovery, promote early settlement, and avoid discovery disputes, unnecessary expense, 

and undue delay.78 Because no single table of contents is 

appropriate for every case, the producing party may devise 

a table of contents that is suited to the materials it provides 

in discovery, its resources, and other considerations.79

c. Forms of production. The producing party should 

consider how discoverable materials were provided to it or 

maintained by the source (e.g., paper or electronic), whether it has converted any materials to a digital format that 

can be used by the opposing party without disclosing the 

producing party’s work product, and how those factors 

may affect the production of discovery materials in electronic formats. For particularized guidance see paragraph 6, 

below. The parties should be flexible in their application of 

the concept of “maintained by the source.” The goals are 

to retain the ESI’s integrity, to allow for reasonable usability, and to reasonably limit costs.80

d. Proprietary or legacy data. Special consideration 

should be given to data stored in proprietary or legacy sys-

 78. See, e.g., U.S. v. Skilling, 554 F.3d 529, 577 (5th Cir. 2009) (no Brady violation 

where government disclosed several-hundred-million-page database with searchable 

files and produced set of hot documents and indices).

79. A table of contents is intended to be a general, high-level guide to the categories of ESI discovery. Because a table of contents may not be detailed, complete, 

or free of errors, the parties still have the responsibility to review the ESI discovery 

produced. With ESI, particular content usually can be located using available electronic search tools. There are many ways to construct a general table of contents. 

For example, a table of contents could be a folder structure as set forth above in 

paragraph 2(a)(i–xv), where like items are placed into folders.

80. For example, when the producing party processes ESI to apply Bates numbers, load it into litigation software, create TIFF images, etc., the ESI is slightly 

modified and no longer in its original state. Similarly, some modification of the ESI 

may be necessary and proper in order to allow the parties to protect privileged information, and the processing and production of ESI in certain formats may result 

in the loss or alteration of some metadata that is not significant in the circumstances 

of the particular case.
Appendix B: ESI Protocol

53

tems, for example, video surveillance recordings in an uncommon format, proprietary databases, or software that is 

no longer supported by the vendor. The parties should discuss whether a suitable generic-output format or report is 

available. If a generic output is not available, the parties 

should discuss the specific requirements necessary to access 

the data in its original format.

e. Attorney–client, work product, and protected information issues.81 The parties should discuss whether 

there is privileged, work product, or other protected information in third-party ESI or their own discoverable ESI 

and should discuss proposed methods and procedures for 

segregating such information and resolving any disputes.82

f. Confidential and personal information. The parties 

should identify and discuss the types of confidential or 

personal information present in the ESI discovery, appropriate security for that information, and the need for any 

protective orders or redactions. See also section 5(p) below.

g. Incarcerated defendant. If the defendant is incarcerated and the court or correctional institution has authorized discovery access in the custodial setting, the parties 

should consider what institutional requirements or limitations may affect the defendant’s access to ESI discovery, 

such as limitations on hardware or software use.83

h. ESI discovery volume. To assist in estimating the receiving party’s discovery costs and to the extent that the 

producing party knows the volume of discovery materials 

 81. Attorney–client and work-product issues (see, e.g., F. R. Crim. P. 16(a)(2) and 

(b)(2)) arising from the parties’ own case preparation are beyond the scope of these 

Recommendations, and they need not be part of the meet-and-confer discussion.

82. If third-party records are subject to an agreement or court order involving a 

selective waiver of attorney–client or work-product privileges (see F.R.E. 502), then 

the parties should discuss how to handle those materials.

83. Because pretrial detainees often are held in local jails (for space, protective 

custody, cost, or other reasons), which have varying resources and security needs, 

there are no uniform practices or rules for pretrial detainees’ access to ESI discovery. 

Resolution of the issues associated with such access is beyond the scope of the Recommendations and Strategies.
Criminal e-Discovery

54

it intends to produce immediately or in the future, the 

producing party may provide such information if such disclosure would not compromise the producing party’s interests. Examples of volume include the number of pages 

of electronic images of paper-based discovery, the volume 

(e.g., gigabytes) of ESI, the number and aggregate length of 

any audio or video recordings, and the number and volume of digital devices. Disclosures concerning expected 

volume are not intended to be so detailed as to require a 

party to disclose what it intends to produce as discovery 

before it has a legal obligation to produce the particular 

discovery material (e.g., Jencks material). Similarly, the 

parties’ estimates are not binding and may not serve as the 

basis for allegations of misconduct or claims for relief.

i. Naming conventions and logistics. The parties 

should, from the outset of a case, employ naming conventions that would make the production of discovery more 

efficient. For example, in a Title III wiretap case generally 

it is preferable that the naming conventions for the audio 

files, the monitoring logs, and the call transcripts be consistent so that it is easy to cross-reference the audio calls 

with the corresponding monitoring logs and transcripts. If 

at the outset of discovery production a naming convention 

has not yet been established, the parties should discuss a 

naming convention before the discovery is produced. The 

parties should discuss logistics and the sharing of costs or 

tasks that will enhance ESI production.

j. Paper materials. For options and particularized guidance on paper materials see paragraphs 6(a) and (e), below. 

k. Any software and hardware limitations. As technology continues to evolve, the parties may have software 

and hardware constraints on how they can review ESI. 

Any limitations should be addressed during the meet-andconfer.

l. ESI from seized or searched third-party ESI digital devices. When a party produces ESI from a seized or 

searched third-party digital device (e.g., computer, cell 
Appendix B: ESI Protocol

55

phone, hard drive, thumb drive, CD, DVD, cloud computing, or file share), the producing party should identify the 

digital device that held the ESI, and, to the extent that the 

producing party already knows, provide some indication of 

the device’s probable owner or custodian and the location 

where the device was seized or searched. Where the producing party only has limited authority to search the digital device (e.g., limits set by a search warrant’s terms), the 

parties should discuss the need for protective orders or 

other mechanisms to regulate the receiving party’s access 

to or inspection of the device.

m. Inspection of hard drives and/or forensic (mirror) images. Any forensic examination of a hard drive, 

whether it is an examination of a hard drive itself or an 

examination of a forensic image of a hard drive, requires 

specialized software and expertise. A simple copy of the forensic image may not be sufficient to access the information stored, as specialized software may be needed. The 

parties should consider how to manage inspection of a 

hard drive and/or production of a forensic image of a 

hard drive and what software and expertise will be needed 

to access the information.

n. Metadata in third-party ESI. If a producing party has 

already extracted metadata from third-party ESI, the parties should discuss whether the producing party should 

produce the extracted metadata together with an industry-standard load file or, alternatively, produce the files as 

received by the producing party from the third party.84

Neither party need undertake additional processing beyond its own case preparation, and both parties are entitled to protect their work product and privileged or other 

protected information. Because the term “metadata” can 

encompass different categories of information, the parties 

should clearly describe what categories of metadata are 

 84. The producing party is, of course, limited to what it received from the third 

party. The third party’s processing of the information can affect or limit what metadata is available.
Criminal e-Discovery

56

being discussed, what the producing party has agreed to 

produce, and any known problems or gaps in the metadata received from third parties.

o. A reasonable schedule for producing and reviewing ESI. Because ESI involves complex technical issues, 

two stages should be addressed. First, the producing party 

should transmit its ESI in sufficient time to permit reasonable management and review. Second, the receiving party 

should be proactive about testing the accessibility of the 

ESI production when it is received. Thus, a schedule should 

include a date for the receiving party to notify the producing party of any production issues or problems that are 

impeding use of the ESI discovery.

p. ESI security. During the first meet-and-confer, the parties should discuss ESI discovery security and, if necessary, 

the need for protective orders to prevent unauthorized access to, or disclosure of, ESI discovery that any party intends to share with team members via the Internet or similar system, including:

i. what discovery material will be produced that is 

confidential, private, or sensitive, including, but 

not limited to, grand jury material, witness identifying information, information about informants, 

a defendant’s or co-defendant’s personal or business information, information subject to court protective orders, confidential personal or business information, or privileged information;

ii. whether encryption or other security measures 

during transmission of ESI discovery are warranted;85

iii. what steps will be taken to ensure that only authorized persons have access to the electronically 

stored or disseminated discovery materials;

 85. The parties should consult their litigation support personnel concerning 

encryption or other security options.
Appendix B: ESI Protocol

57

iv. what steps will be taken to ensure the security of 

any website or other electronic repository against 

unauthorized access;

v. what steps will be taken at the conclusion of the 

case to remove discovery materials from a website 

or similar repository; and

vi. what steps will be taken at the conclusion of the 

case to remove or return ESI discovery materials 

from the recipient’s information system(s), or to 

securely archive them to prevent unauthorized access.

Note: Because all parties want to ensure that ESI discovery is secure, the Department of Justice, Federal Defender 

Offices, and CJA counsel are compiling an evolving list of 

security concerns and recommended best practices for 

appropriately securing discovery. Prosecutors and defense 

counsel with security concerns should direct inquiries to 

their respective ESI liaisons,86 who, in turn, will work 

with their counterparts to develop best practice guidance.

q. Other issues. The parties should address other issues 

they can anticipate, such as protective orders, “claw-back” 

agreements87 between the government and criminal defendant(s), or any issues related to the preservation or collection of ESI discovery.

r. Memorializing agreements. The parties should memorialize any agreements reached to help forestall later 

disputes.

 86. Federal Defender Organizations and CJA panel attorneys should contact 

Sean Broderick (National Litigation Support Administrator) or Kelly Scribner (Assistant National Litigation Support Administrator) at 510-637-3500, or by email: 

sean_broderick@fd.org, kelly_scribner@fd.org. Prosecutors should contact Andrew 

Goldsmith (National Criminal Discovery Coordinator) at Andrew.Goldsmith@ 

usdoj.gov or John Haried (Assistant National Criminal Discovery Coordinator) at 

John.Haried@usdoj.gov.

87. A “claw-back” agreement outlines procedures to be followed to protect 

against waiver of privilege or work-product protection due to inadvertent production 

of documents or data.
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58

s. Notice to court.

i. Preparing for the meet-and-confer. A defendant who anticipates the need for technical assistance to conduct the meet-and-confer should give the court 

adequate advance notice if it will be filing an ex 

parte funds request for technical assistance. 

ii. Following the meet-and-confer. The parties should notify the court of ESI discovery production issues or 

problems that they anticipate will significantly affect when ESI discovery will be produced to the 

receiving party, when the receiving party will complete its accessibility assessment of the ESI discovery received,88 whether the receiving party will 

need to make a request for supplemental funds to 

manage ESI discovery, or the scheduling of pretrial motions or trial.

6. Production of ESI Discovery

a. Paper Materials. Materials received in paper form may 

be produced in that form,89 made available for inspection, 

or, if they have already been converted to digital format, 

produced as electronic files that can be viewed and 

searched. Methods are described below in paragraph 6(b).

b. Electronic production of paper documents. Three 

possible methodologies:

i. Single-page TIFFs. Production in TIFF and OCR 

format consists of the following three elements:

(1) Paper documents are scanned to a picture 

or image that produces one file per page. 

Documents should be unitized. Each elec-

 88. See paragraph 5(o) of the Strategies, above.

89. The decision whether to scan paper documents requires striking a balance 

between resources (including personnel and cost) and efficiency. The parties should 

make that determination on a case-by-case basis.
Appendix B: ESI Protocol

59

tronic image should be stamped with a 

unique page label or Bates number.

(2) Text from that original document is generated by OCR and stored in separate 

text files without formatting in a generic 

format using the same file naming convention and organization as image file.

(3) Load files that tie together the images and 

text.

ii. Multi-page TIFFS. Production in TIFF and OCR 

format consists of the following two elements:

(1) Paper documents are scanned to a picture 

or image that produces one file per document. Each file may have multiple pages. 

Each page of the electronic image should 

be stamped with a unique page label or 

Bates number.

(2) Text from that original document is generated by OCR and stored in separate 

text files without formatting in a generic 

format using the same file naming convention and organization as the image file.

iii. PDF. Production in multi-page, searchable PDF 

format consists of the following one element:

(1) Paper documents scanned to a PDF file 

with text generated by OCR included in 

the same file. This produces one file per 

document. Documents should be unitized. 

Each page of the PDF should be stamped 

with a unique Bates number.

iv. Note re: color documents. Paper documents should not 

be scanned in color unless the color content of an 
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individual document is particularly significant to 

the case.90

c. ESI production. Three possible methodologies:

i. Native files as received. Production in a native file format without any processing consists of a copy of 

ESI files in the same condition as they were received.

ii. ESI converted to electronic image. Production of ESI 

into a TIFF or PDF and extracted text format 

consists of the following four elements:

(1) Electronic documents converted from their 

native format into a picture/image. The 

electronic image files should be computer-generated, as opposed to printed and 

then imaged. Each electronic image should 

be stamped with a unique Bates number.

(2) Text from that original document is extracted or pulled out and stored without 

formatting in a generic format.

(3) Metadata (i.e., information about that 

electronic document), depending upon the 

type of file converted and the tools or methodology used, that has been extracted 

and stored in an industry-standard format. 

The metadata must include information 

about structural relationships between documents, e.g., parent–child relationships.

(4) Load files that tie together the images, 

text, and metadata.

 90. Color scanning substantially slows the scanning process and creates huge 

electronic files, which consume storage space, making the storage and transmission 

of information difficult. An original signature, handwritten marginalia in blue or red 

ink, and colored text highlights are examples of color content that may be particularly significant to the case.
Appendix B: ESI Protocol

61

iii. Native files with metadata. Production of ESI in a 

processed native-file format consists of the following four elements:

(1) The native files.

(2) Text from that original document is extracted or pulled out and stored without 

formatting in a generic format.

(3) Metadata (i.e., information about that electronic document), depending upon the type 

of file converted and the tools or methodology used, that has been extracted and stored 

in an industry-standard format. The 

metadata must include information about 

structural relationships between documents, 

e.g., parent–child relationships.

(4) Load files that tie together the native file, 

text, and metadata.

d. Forensic images of digital media. Forensic images of 

digital media should be produced in an industry-standard 

forensic format, accompanied by notice of the format used.

e. Printing ESI to paper. The producing party should not 

print ESI (including TIFF images or PDF files) to paper as 

a substitute for production of the ESI unless agreed to by 

the parties.

f. Preservation of ESI materials received from third 

parties. A party receiving potentially discoverable ESI 

from a third party should, to the extent practicable, retain 

a copy of the ESI as it was originally produced in case it is 

subsequently needed to perform quality control or verification of what was produced.

g. Production of ESI from third parties. ESI from 

third parties may have been received in a variety of formats, for example, in its original format (native, such as 

Excel or Word), as an image (TIFF or PDF), as an image 

with searchable text (TIFF or PDF with OCR text), or as a 
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combination of any of these. The third party’s format can 

affect or limit the available options for production as well 

as what associated information (metadata) might be available. ESI received from third parties should be produced 

in the format(s) it was received or in reasonably usable 

format(s). ESI received from a party’s own business records 

should be produced in the format(s) in which it was maintained or in reasonably usable form(s). The parties should 

explore what formats of production91 are possible and appropriate and discuss what formats can be generated. Any 

format selected for producing discovery should, if possible 

and appropriate, conform to industry standards for the 

format.

h. ESI generated by the government or defense. Paragraphs 6(f) and 6(g) do not apply to discoverable materials 

generated by the government or defense during the course 

of their investigations (e.g., demonstrative exhibits, investigative reports and witness interviews—see subparagraph i, 

below, etc.) because the parties’ legal discovery obligations 

and practices vary according to the nature of the material, 

the applicable law, evolving legal standards, and the parties’ evolving technological capabilities. Thus, such materials may be produced differently from third-party ESI. 

However, to the extent practicable, this material should be 

produced in a searchable and reasonably usable format. 

Parties should consult with their investigators in advance 

of preparing discovery to ascertain the investigators’ ESI 

capabilities and limitations.

i. Investigative reports and witness interviews. Investigative reports and witness interviews may be produced 

in paper form if they were received in paper form or if the 

final version is in paper form. Alternatively, they may be 

produced as electronic images (TIFF images or PDF files), 

 91. An example of a format of production might be the production of TIFF 

images, OCR text files, and load files created for a specific software application. 

Another format of production would be native-file production, which would accommodate files with unique issues, such as spreadsheets with formulas and databases. 
Appendix B: ESI Protocol

63

particularly when needed to accommodate any necessary 

redactions. Absent particular issues such as redactions or 

substantial costs or burdens of additional processing, electronic versions of investigative reports and witness interviews should be produced in a searchable text format (such 

as ASCII text, OCR text, or plain text (.txt)) in order to 

avoid the expense of reprocessing the files. To the extent 

possible, the electronic image files of investigative reports 

and witness interviews should be computer-generated (as 

opposed to printed to paper and then imaged) in order to 

produce a higher-quality, searchable text, which will enable the files to be more easily searched and more 

cost-effectively utilized.92

j. Redactions. ESI and/or images produced should identify the extent of redacted material and its location within 

the document.

k. Photographs and video and audio recordings. A 

party producing photographs or video or audio recordings 

that either were originally created using digital devices or 

have previously been digitized should disclose the digital 

copies of the images or recordings if they are in the producing party’s possession, custody or control. When technically feasible and cost-efficient, photographs and video 

and audio recordings that are not already in a digital format should be digitized into an industry-standard format if 

and when they are duplicated. The producing party is not 

required to convert materials obtained in analog format to 

digital format for discovery.

l. Test runs. Before producing ESI discovery, a party 

should consider providing samples of the production format for a test run and, once a format is agreed upon, produce all ESI discovery in that format.

 92. For guidance on making computer-generated versions of investigative reports and witness interview reports, see the description of production of TIFF, PDF, 

and extracted text formats in paragraphs 6(b)(ii)(1) and (ii).
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m. Access to originals. If the producing party has converted paper materials to digital files, converted materials 

with color content to black and white images, or processed 

audio, video, or other materials for investigation or discovery, it should provide reasonable access to the originals 

for inspection and/or reprocessing.

7. Transmitting ESI Discovery

a. ESI discovery should be transmitted on electronic media 

of sufficient size to hold the entire production, for example, a CD, DVD, or thumb drive.93 If the size of the production warrants a large-capacity hard drive, then the 

producing party may require the receiving party to bear 

the cost of the hard drive and to satisfy requirements for 

the hard drive that are necessary to protect the producing 

party’s IT system from viruses or other harm.

b. The media should be clearly labeled with the case name 

and number, the producing party, a unique identifier for 

the media, and a production date.

c. A cover letter should accompany each transmission of ESI 

discovery providing basic information, including the 

number of media, the unique identifiers of the media, a 

brief description of the contents (including a table of contents if created), any applicable bates ranges or other 

unique production identifiers, and any necessary passwords to access the content. Passwords should not be in 

the cover letter accompanying the data, but in a separate 

communication.

d. The producing party should retain a write-protected copy 

of all transmitted ESI as a preserved record to resolve any 

subsequent disputes.

 93. Rolling productions may, of course, use multiple media. The producing 

party should avoid using multiple media when a single media will facilitate the receiving party’s use of the material.
Appendix B: ESI Protocol

65

e. Email transmission. When considering transmission of 

ESI discovery by email, the parties’ obligation varies according to the sensitivity of the material, the risk of harm 

from unauthorized disclosure, and the relative security of 

email versus alternative transmission. The parties should 

consider three categories of security:

i. Not appropriate for email transmission: Certain categories of ESI discovery are never appropriate for 

email transmission, including, but not limited to, 

certain grand jury materials; materials affecting 

witness safety; materials containing classified, national security, homeland security, tax return, or 

trade secret information; or similar items.

ii. Encrypted email transmission: Certain categories of 

ESI discovery warrant encryption or other secure 

transmission due to their sensitive nature. The 

parties should discuss and identify those categories 

in their case. This would ordinarily include, but 

not be limited to, information about informants, 

confidential business or personal information, and 

information subject to court protective orders.

iii. Unencrypted email transmission: Other categories of 

ESI discovery not addressed above may be appropriate for email transmission, but the parties always need to be mindful of their ethical obligations.94

8. Coordinating Discovery Attorney

Coordinating Discovery Attorneys (CDAs) are AOUSC-contracted attorneys who have technological knowledge and experience, resources, 

and staff to effectively manage complex ESI in multiple-defendant 

 94. Illustrative of the security issues in the attorney–client context are ABA Op. 

11-459 (Duty to Protect the Confidentiality of E-mail Communications with One’s 

Client) and ABA Op. 99-413 (Protecting the Confidentiality of Unencrypted 

E-Mail).
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66

cases. The CDAs may be appointed by the court to provide additional 

in-depth and significant hands-on assistance to CJA panel attorneys 

and FDO staff in selected multiple-defendant cases that require technology and document-management assistance. They can serve as a 

primary point of contact for the U.S. Attorney’s Office to discuss ESI 

production issues for all defendants, resulting in lower overall case 

costs for the parties. If you have any questions regarding the services of 

a CDA, please contact either Sean Broderick (National Litigation 

Support Administrator) or Kelly Scribner (Assistant National Litigation Support Administrator) at 510-637-3500, or by email: 

sean_broderick@fd.org, kelly_scribner@fd.org.

9. Informal Resolution of ESI Discovery Matters

No additional commentary.

10. Security: Protecting Sensitive ESI Discovery from 

Unauthorized Access or Disclosure

See sections 5(f) (Confidential and personal information), 5(p) (ESI security), and 7(e) (Email transmission) of the Strategies for additional 

guidance.

11. Definitions

To clearly communicate about ESI, it is important that the parties use 

ESI terms in the same way. Below are common ESI terms used when 

discussing ESI discovery:

a. Cloud computing. With cloud computing, the user accesses a remote computer hosted by a cloud service provider over the Internet or an intranet to access software 

programs or create, save, or retrieve data, for example, to 

send messages or create documents, spreadsheets, or databases. Examples of cloud computing include Gmail, 

Hotmail, Yahoo! Mail, Facebook, and online banking.

b. Coordinating Discovery Attorney (CDA). An 

AOUSC-contracted attorney who has technological know-
Appendix B: ESI Protocol

67

ledge and experience, resources, and staff to effectively 

manage complex ESI in multiple-defendant cases, and 

who may be appointed by a court in selected multiple-defendant cases to assist CJA panel attorneys and/or 

FDO staff with discovery management.

c. Document unitization. Document unitization is the 

process of determining where a document begins (its first 

page) and ends (its last page), with the goal of accurately 

describing what was a “unit” as it was received by the 

party or was kept in the ordinary course of business by the 

document’s custodian. A “unit” includes attachments—for 

example, an email with an attached spreadsheet. Physical 

unitization utilizes actual objects such as staples, paper 

clips, and folders to determine pages that belong together 

as documents. Logical unitization is the process of human 

review of each individual page in an image collection using 

logical cues to determine pages that belong together as 

documents. Such cues can be consecutive page numbering, report titles, similar headers and footers, and other 

logical cues.

d. ESI (Electronically Stored Information). Any information created, stored, or utilized with digital technology. 

Examples include, but are not limited to, word-processing 

files, e-mail and text messages (including attachments); 

voicemail; information accessed via the Internet, including 

social networking sites; information stored on cell phones;

information stored on computers, computer systems, 

thumb drives, flash drives, CDs, tapes, and other digital 

media.

e. Extracted text. The text of a native file extracted during 

ESI processing of the native file, most commonly when native files are converted to TIFF format. Extracted text is 

more accurate than text created by the OCR processing of 

document images that were created by scanning and will 

therefore provide higher quality search results.

f. Forensic image (mirror image) of a hard drive or

other storage device. A process that preserves the en-
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tire contents of a hard drive or other storage device by 

creating a bit-by-bit copy of the original data without altering the original media. A forensic examination or analysis of an imaged hard drive requires specialized software 

and expertise to both create and read the image. User created files, such as email and other electronic documents, 

can be extracted, and a more complete analysis of the hard 

drive can be performed to find deleted files and/or access 

information. A forensic or mirror image is not a physical 

duplicate of the original drive or device; instead it is a file 

or set of files that contains all of the data bits from the 

source device. Thus a forensic or mirror image cannot 

simply be opened and viewed as if you were looking at the 

original device. Indeed, forensic or mirror images of multiple hard drives or other storage devices can be stored on 

a single hard drive of sufficient capacity.

g. Image of a document or document image. An electronic “picture” of how the document would look if printed. Images can be stored in various file formats, the most 

common of which are TIFFs and PDFs. Document images, such as TIFFs and PDFs, can be created directly from 

native files or created by scanning hard copy.

h. Load file. A cross-reference file used to import images or 

data into databases. A data load file may contain Bates 

numbers, metadata, paths to native files, coded data, and 

extracted or OCR text. An image load file may contain 

document boundary, image type, and path information. 

Load files must be obtained and provided in software-specific 

formats to ensure they can be used by the receiving party.

i. Metadata. Data that describes characteristics of ESI, for 

example, the author, date created, and date last accessed 

of a word processing document. Metadata is generally not 

reproduced in full form when a document is printed to 

paper or electronic image. Metadata can describe how, 

when and by whom ESI was created, accessed, modified, 

formatted, or collected. Metadata can be supplied by applications, users, or the file system, and it can be altered 
Appendix B: ESI Protocol

69

intentionally or inadvertently. Certain metadata can be 

extracted when native files are processed for litigation. 

Metadata is found in different places and in different 

forms. Some metadata, such as file dates and sizes, can 

easily be accessed by users; other metadata can be hidden 

or embedded and unavailable to computer users who are 

not technically adept. Note that some metadata may be 

lost or changed when an electronic copy of a file is made 

using ordinary file-copy methods.

j. Native file. A file as it was created in its native software, 

for example a Word, Excel, or PowerPoint file, or an email 

in Outlook or Lotus Notes.

k. OCR (Optical Character Recognition). A process 

that converts a picture of text into searchable text. The 

quality of the created text can vary greatly depending on 

the quality of the original document, the quality of the 

scanned image, the accuracy of the recognition software,

and the quality control process of the provider. Generally 

speaking, OCR does not handle handwritten text or text in 

graphics well. OCR conversion rates can range from 50–

98% accuracy depending on the underlying document. A 

full page of text is estimated to contain 2,000 characters, so 

OCR software with even 90% accuracy would create a 

page of text with approximately 200 errors.

l. Parent–child relationships. Related documents are 

described as having a parent–child relationship, for example, where the email is the parent and an attached spreadsheet is the child.

m. PDF (Portable Document Format). A file format created by Adobe that allows a range of options, including 

electronic transmission, viewing, and searching.

n. TIFF (Tagged Image File Format). An industry-standard 

file format for storing scanned and other digital blackand-white, grey-scale, and full-color images.
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ESI Discovery Production Checklist

! Is this a case where the volume or nature of ESI significantly increases the case’s complexity?

! Does this case involve classified information?

! Does this case involve trade secrets, or national security or homeland security information?

! Do the parties have appropriate technical advisors to assist?

! Have the parties met and conferred about ESI issues?

! Have the parties addressed the format of ESI being produced? 

Categories may include:

! Investigative reports and materials

! Witness statements

! Tangible objects

! Third-party ESI digital devices (computers, phones, etc.)

! Photos, video and audio recordings

! Third-party records

! Title III wiretap information

! Court records

! Tests and examinations

! Experts

! Immunity and plea agreements

! Discovery materials with special production considerations

! Related matters

! Discovery materials available for inspection but not produced digitally

! Other information

! Have the parties addressed ESI issues involving:

! Table of contents?

! Production of paper records as either paper or ESI?

! Proprietary or legacy data?

! Attorney–client, work-product, or other privilege issues?

! Sensitive confidential, personal, grand jury, classified, tax 

return, trade secret, or similar information?
Appendix B: ESI Protocol

71

! Whether email transmission is inappropriate for any categories of ESI discovery?

! Incarcerated defendant’s access to discovery materials?

! ESI discovery volume for receiving party’s planning purposes?

! Parties’ software or hardware limitations?

! Production of ESI from third-party digital devices?

! Forensic images of ESI digital devices?

! Metadata in third-party ESI?

! Redactions?

! Reasonable schedule for producing party?

! Reasonable schedule for receiving party to give notice of 

issues?

! Appropriate security measures during transmission of ESI 

discovery, e.g., encryption?

! Adequate security measures to protect sensitive ESI 

against unauthorized access or disclosure?

! Need for protective orders, claw-back agreements, or similar orders or agreements?

! Collaboration on sharing costs or tasks?

! Need for receiving party’s access to original ESI?

! Preserving a record of discovery produced?

! Have the parties memorialized their agreements and disagreements?

! Do the parties have a system for resolving disputes informally?

! Is there a need for a designated discovery coordinator for multiple 

defendants?

! Do the parties have a plan for managing/returning ESI at the 

conclusion of the case?

Appendix C

First Appearance e-Discovery Colloquy

Appendix C: First Appearance e-Discovery Colloquy

75

At the first appearance of a defendant and after appointment of counsel, engage parties in the following colloquy concerning e-discovery.

A. Ask the prosecutor about possible e-discovery in the case,

and generally how the government will proceed:

1. Does the government intend to produce any discovery in electronic formats?

2. Does the volume or nature of the government’s 

electronic discovery significantly increase the complexity of the case?

3. Are you familiar with the ESI Protocol?

4. Are you going to utilize the ESI Protocol?

B. Ask defense counsel about familiarity with managing 

e-discovery, and generally how the defense will proceed:

1. Are you familiar with the ESI Protocol?

2. Do you have a copy of the ESI Protocol to rely on 

as you work through the e-discovery? If not, the 

government can provide a copy.

3. What is your experience with complex e-discovery 

cases?

4. Are you familiar with various software products 

and e-discovery services that can be used to review 

and organize e-discovery? Have you used them

before?

5. Have you worked with litigation support, paralegals, or IT staff before to review e-discovery?

6. Do you presently have litigation support, paralegals, or IT staff who can work with you to review 

and organize electronic evidence? If not, you may 

need to decide what type of expert or experts you 

will need. Do you know how to do that?
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C. Engage both parties in a discussion of how they will cooperatively address complex e-discovery:

1. Are you utilizing the ESI Protocol?

2. Have you already had a meet-and-confer to address e-discovery issues? If so, do you have any 

agreements or a discovery plan? If not, what is 

your plan for addressing e-discovery issues?

3. Will the volume or nature of the e-discovery potentially affect:

a. Speedy trial deadlines for this case?

b. Scheduling pretrial motions?

c. Scheduling trial?

D. Address all attorneys about what the court expects of 

them in managing a complex e-discovery criminal case:

1. I expect you already have, or will promptly gain, 

an adequate understanding of and adequate technical assistance in e-discovery matters.

2. I expect the lawyers on this case to manage electronic discovery effectively, efficiently, and responsibly, and to seek cost savings.

3. I also expect the lawyers on this case to determine 

what software programs and expert assistance you 

need to review the discovery. If you do not know 

what type of expert to retain or what software 

programs to use, you should consult with someone 

knowledgeable about e-discovery before making 

those decisions.

4. While the lawyers may, and should, employ litigation support, paralegals, and/or IT staff, ultimately, the lawyers are responsible for e-discovery 

decisions made in this case.

5. I encourage all parties to utilize a collaborative 

approach to e-discovery based upon the mutual 
Appendix C: First Appearance e-Discovery Colloquy

77

and interdependent responsibilities of the opposing parties. The ESI Protocol offers a model of 

such an approach.

6. An important part of the process is a meet-andconfer discussion about the e-discovery issues in 

this case. I encourage you to use the checklist at 

the end of the ESI Protocol during your meet-andconfer session. For scheduling purposes, some of 

the key steps to pay attention to are:

a. The parties should discuss a reasonable 

e-discovery production schedule.

b. Defense counsel should be proactive about 

testing the accessibility of the e-discovery production when it is received, and promptly notify the government of any problems in accessing the materials.

c. If defense counsel determines that additional funds for expert assistance are needed, that needs to be brought to the court’s 

attention promptly.

7. I expect that the parties will promptly notify the 

court of any e-discovery issues that might reasonably affect speedy trial deadlines, or the scheduling 

of pretrial motions or trial.

E. If there are CJA attorneys appointed to defend one or 

more defendants, address funding issues with them:

1. If you will be hiring expert assistance to organize 

and review the e-discovery, have them help you 

decide on a realistic estimation of the time that 

they will need to do so. If that exceeds the expert’s 

costs “cap,” file an ex parte, sealed motion asking 

to exceed the capped amount, explaining the work 

that would be done and how you or they arrived 

at that cost estimate. 
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F. If there are multiple defendants (so multiple defense counsel)

in the case, the advisability of coordinating e-discovery 

among defendants should be raised at the first appearance. 

This gives counsel time to discuss and decide potential coordination before a meet-and-confer session. 

1. I am not ordering you to do this, but you may want 

to consider whether to designate one defense attorney to manage e-discovery.

G. Advise defense counsel about the availability of resources 

to help guide them in managing complex e-discovery:

1. If you need advice and guidance about getting 

started, there are resources available to help you 

decide how to productively get the information 

you need from the e-discovery. The National Litigation Support Team, part of the Defender Services Office (DSO) of the Administrative Office of 

the U.S. Courts,95 is available to provide guidance 

about how to efficiently, and cost-effectively, manage e-discovery. If you are not familiar with the 

technology and expert assistance you will need, 

you should contact them right away, well before 

the meet-and-confer session. They can also tell 

you about contracts they have secured for reduced 

prices on some of the software programs that may 

help you review and organize the evidence.

2. Another resource available to defender offices and 

CJA counsel is appointment of a coordinating 

discovery attorney. Those handling voluminous or 

complex e-discovery (especially when there are 

multiple defendants) can have an attorney expert 

in e-discovery appointed to work with defense 

counsel to help coordinate, organize, and process 

e-discovery. After exploring the nature and vol-

 95 The National Litigation Support Team can be contacted at (510) 637-3500.
Appendix C: First Appearance e-Discovery Colloquy

79

ume of e-discovery, and what it will take for defense counsel to review it, if you think this case 

needs a coordinating discovery attorney appointed, then file an ex parte sealed motion explaining 

why, and the court will consider it.

H. Finally, the court may decide to set a discovery status conference (giving parties enough time to secure expert assistance if needed, and to hold a meaningful meet-and-confer

session) to verify that e-discovery is moving smoothly, cooperatively, and effectively. Inform all parties:

1. I am going to schedule a discovery status conference to follow up on the progress the parties are 

making with the e-discovery, and ensure that any 

problems with it are resolved early.

2. I encourage you to conduct your meet-and-confer

session well before the discovery status conference 

so that you can address and resolve any issues.

Appendix D

Discovery Status Conference e-Discovery

Colloquy

Appendix D: Discovery Status Conference e-Discovery Colloquy

83

Having already addressed e-discovery issues at the first appearance, 

the court may schedule a discovery status conference to confirm 

whether e-discovery is being addressed by parties intelligently, efficiently, and cost-effectively. At a discovery status conference, engage 

parties in the following colloquy concerning the status of their e-discovery.

A. In cases with multiple defendants, the court would have asked 

parties to consider whether one defense attorney should be 

responsible for receiving, distributing, and possibly coordinating work on e-discovery for all defense teams. The court can

follow up on that by asking all multiple-defense counsel:

1. Is this a case where management of the e-discovery would benefit from having either:

a. A single defense attorney receiving e-discovery from the government for all defendants and being responsible for disseminating it to all defendants; or

b. A coordinating discovery attorney appointed 

by the court?

2. If one of you will manage the discovery for all defendants, have you already selected that attorney?

If you want to use a coordinating discovery attorney, have you contacted the National Litigation 

Support Team to ensure that doing so is appropriate for this case?

B. The court can then check on the parties’ success in trying to 

decide and resolve e-discovery issues. To that end, it should 

address both parties:

1. Did the parties conduct a meet-and-confer session?

2. Did you utilize the ESI Protocol?

3. Did you have litigation support specialists (if needed) to help you decide how to manage the ESI dis-
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covery? Did you have your litigation support specialists with you at the meet-and-confer session?

4. Were the parties able to reach decisions as to 

when, how, and in what format the e-discovery 

will be produced?

5. Were the parties able to reach decisions on other 

e-discovery issues (such as those listed in the checklist of the ESI Protocol)?

C. Verify with the government whether there is an e-discovery production schedule agreed upon:

1. Do you have an e-discovery production schedule?

a. What is it?

b. Have you started producing e-discovery to 

the defense?

c. Do you anticipate a “rolling” production 

of e-discovery?

D. The court can also verify with the defense whether it has 

performed an initial review of any disclosures to ascertain 

that it can access and utilize the ESI. Then the court should 

inquire of defense counsel whether the defense has an 

e-discovery production schedule that was agreed upon:

1. Do you have a schedule as to when you will do a 

summary initial review of the e-discovery (to ascertain that you can open and use it as produced)?

a. What is it?

b. If production has started, have you performed a review of the e-discovery to verify that you can access and use it?

2. You may have e-discovery to disclose to the government. Did you already discuss any defense 

e-discovery in the meet-and-confer session?

3. Do you have an e-discovery production schedule?
Appendix D: Discovery Status Conference e-Discovery Colloquy

85

a. What is it?

b. Have you started producing e-discovery to 

the government?

c. Do you anticipate a “rolling” production 

of discovery?

E. If the parties did not accomplish all that was necessary, the 

court may want to reiterate to all parties some of its advisements about expectations and resources from the First Appearance e-Discovery Colloquy, sections D–G, contained in 

Appendix C.

F. The court may decide to inquire about any unresolved discovery issues or disputes. If so, it could ask both parties:

1. Were all e-discovery issues resolved by the meetand-confer session? Were there any e-discovery issues that were not resolved?

G. If there are unresolved issues, the court may want to set another discovery status conference to settle those matters.
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair 

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of New York 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Michael J. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia 

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of 

the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes the director of the Administrative Office of the U.S. Courts and seven judges elected by the 

Judicial Conference. 

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training for judges and court staff, including in-person programs, video programs, publications, curriculum packages for in-district training, and Web-based

programs and resources. The Research Division examines and evaluates current and alternative 

federal court practices and policies. This research assists Judicial Conference committees, who request most Center research, in developing policy recommendations. The Center’s research also 

contributes substantially to its educational programs. The Federal Judicial History Office helps 

courts and others study and preserve federal judicial history. The International Judicial Relations 

Office provides information to judicial and legal officials from foreign countries and informs federal judicial personnel of developments in international law and other court systems that may affect their work. Two units of the Director’s Office—the Information Technology Office and the 

Editorial & Information Services Office—support Center missions through technology, editorial 

and design assistance, and organization and dissemination of Center resources.