1

 The Working Group is made up of Administrative Office staff, Federal Defender

Organization attorneys, a private criminal defense attorney representative, and Department of

Justice (DOJ) representatives, including a federal prosecutor. Staff from the Federal Judicial

Center and one member of the Committee on Defender Services of the United States Judicial

Conference also were regular participants in Working Group meetings. Current membership of

the Working Group is listed in Appendix 1. 

2

 “Electronic data,” as used here, means information that was (a) received by a party in

some other form and converted to computer-readable format, (b) originally received by a party in

computer-readable format, or (c) created by a party in computer-readable format. It is intended

to be an inclusive term.

JOINT ADMINISTRATIVE OFFICE/DEPARTMENT OF JUSTICE

 WORKING GROUP ON ELECTRONIC TECHNOLOGY

 IN THE CRIMINAL JUSTICE SYSTEM

I. BACKGROUND AND CHARTER OF THE WORKING GROUP

As a by-product of the Report on Costs and Recommendations for the Control of Costs of

the Defender Services Program, transmitted to Congress in January 1998, the Director of the

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

States created the Administrative Office of the United States Courts/Department of Justice Joint

Working Group on Electronic Technology in the Criminal Justice System (“the Working

Group”). The Working Group was charged with examining the use of electronic technology in

the federal criminal justice system and its effect on the cost of evidence collection, analysis, and

presentation. The formation of this unique “tripartisan” Working Group1 – with representatives

of the AOUSC, the Department of Justice (DOJ), and both the public and private criminal

defense bar – offered a means to explore ways in which technology might be used to promote

the fair handling of electronic data2 in a cost-effective manner. The Working Group, which held

its first meeting in June 1999, has analyzed how cooperation and coordination among

participants may improve the criminal justice system while controlling costs and increasing

efficiency in the context of an adversarial system and within the constraints of doctrines such as

attorney work product and other privileges or ethical limitations.

II. MISSION STATEMENT

 The Working Group began by developing a mission statement.

Mission:

To advance the fair administration of justice in the exchange and use of

electronic data in a cooperative and cost-effective manner for all parties when
Electronic Technology Page 2

3

 Early in 2001, at the request of the Federal Judicial Center, members of the Working

Group reviewed a draft of Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial

and Trial, a joint publication of the Center and the National Institute of Trial Advocacy. The

handbook was published later in the year and distributed to all federal judges and clerks, as well

as to federal defender offices. This seminal publication is a valuable reference for those

concerned with matters addressed in this report.

4

 Pub. L. No. 105-277 ss. 1701-1710, 1998, codified as 44 USCA § 2504 n, West Supp.

1999.

required by the rules, when consistent with local custom and practice (compatible

with privilege), or mandated by court order.

III. ISSUES IDENTIFIED

The Working Group sought input from federal judges, Criminal Chiefs of United States

Attorney’s Offices, Federal Defenders, and Criminal Justice Act panel attorneys through

questionnaires and interviews. Though not constituting a scientific survey, these sources

provided useful insight into the leading issues arising from the use of electronic data in criminal

litigation. (The results of these efforts are described more fully in Appendix 2.) In addition, the

Working Group consulted with a number of different organizations working in the area of

electronic data and litigation, including the Courtroom 21 Project at the College of William and

Mary’s School of Law and the Federal Judicial Center.3

 Based on the input of these groups and

the Working Group’s discussions, the following issues were identified:

! Electronic Data Is Pervasive

Computers have become so commonplace that many cases now involve discovery of

some computer-stored information. In fact, in a growing number of cases, relevant data

exists only in electronic form. From the largest investigative and prosecutorial offices to

the smallest criminal defense firms and solo practitioners, computers are used to cut

costs, improve efficiency, enhance communication, store data, and improve capabilities

in every aspect of practice. Indeed, the Government Paperwork Elimination Act4 requires

that as much government business as possible be conducted by computer by October 21,

2003. Current initiatives to implement electronic case filing provide evidence of the

federal judiciary’s commitment to using computer-based technologies to improve the

judicial process. Given the proliferation of computers, the use and involvement of

computers and electronic data will only increase. Kenneth J. Withers, a Research

Associate at the Federal Judicial Center who participated in a number of the Working

Group’s meetings, has noted that:
Electronic Technology Page 3

C According to a University of California study, 93% of all information generated

during 1999 was generated in digital form, on computers. Only 7% of information

originated in other media, such as paper. 

C Nearly all conventional documents are word-processed.

C Nearly all business activities are now computerized.

C E-mail traffic has surpassed telephone and postal communications.

C Just as legitimate activities are conducted on computers, so are illegitimate

activities. Securities fraud, drug dealing, pornography distribution, illicit firearms

sales – a whole panoply of bad acts – are conducted using computers and

computer-mediated communications.

See, Kenneth J. Withers, Electronic Discovery: The Challenges and Opportunities of Electronic

Evidence, Presentation to Federal Judicial Center, National Workshop for Magistrate Judges,

July 23-25, 2001, <http://www.kenwithers.com/articles/sandiego/>, at slide02.html -

slide03.html.

! Emerging Issues

While federal criminal justice participants report that the use of evidence in an electronic

form is not yet pervasive in federal criminal litigation, they identified a number of

significant issues that have arisen when such evidence has been employed.

C Lack of Resources

Prosecutors, defense counsel, and judges all cited a lack of adequate resources to

address electronic data issues, including insufficient funds to purchase appropriate

hardware and software and a lack of adequately trained systems support

personnel. Insufficient resources were also reported to have produced disparities

among parties where, for example, either co-defendants or the prosecution and

defense have differing levels of technical resources.

C Lack of Training 

Everyone involved in the investigation, preparation and litigation of criminal

cases increasingly encounters new technologies in the midst of their ongoing

work. All parties identified a need for training to make the most efficient use of

available electronic technology.
Electronic Technology Page 4

5

 Many groups are actively pursuing justice system electronic data issues. A partial list

of those entities is included at Appendix 3.

C Jurisprudential Issues

While other groups5 are considering a variety of jurisprudential issues raised by

electronic data, the Working Group focused on what electronic information is

discoverable and who bears the cost for the discovery. These discovery

questions, which also affect courtroom presentation, appear to be arising with

increasing frequency under circumstances where one party to the litigation has

used electronic tools to convert, organize, or index large quantities of documents. 

For example, substantive legal issues may be implicated when electronic

evidence, by its very organization, may reveal trial strategies or attorney work

product.

C Cost Factors

National policy makers with budgetary responsibilities representing each of the

constituent groups should address issues of cost-sharing and the potential

budgetary impact of the necessary use of electronic technology in criminal

litigation. Costs may be larger than initially presumed. The budgetary impact

should include not only the cost of producing information in an electronic form,

but also of interpreting, organizing, and disclosing electronic information, using

electronic technology to make courtroom presentations, and providing training on

all of these matters.

IV. RECOMMENDATIONS

Criminal cases arise from the business of everyday life. With growing frequency, that

business is conducted digitally. As a result, participants in the criminal justice system

increasingly use data either conveyed to them in, or converted to, an electronic format. As law

enforcement agencies, prosecutors, defense lawyers, and courts invest in new technology to

process this information, additional costs will be incurred. The ability of all participants in the

criminal justice system to address the issues presented by these new technologies will greatly

impact that system’s fairness and efficiency.

A. GENERAL

1. The AOUSC, Department of Justice, and Federal Defenders should maintain a

working group to monitor, discuss and make recommendations regarding

electronic information issues. The Working Group concluded that promoting
Electronic Technology Page 5

6

 In this regard, the Working Group identified several goals that merit continued

attention:

(1) identify data that must be used for differing purposes (investigation, case

preparation, disclosure obligations, courtroom presentation and deliberations,

archives);

(2) catalogue policies that promote the exchange of data in usable formats

and for various uses by diverse actors (investigative agents, court, defense

counsel, prosecutor, and jury); and

(3) recognize judicial practices that promote the effective exchange of data in

usable formats, and recommend appropriate application of, and if needed,

changes to, rules of procedure and evidence.

Efforts to accomplish these goals should be ongoing as participants in the process gain more

experience in these areas.

awareness of new technology capabilities and the issues they generate will help

criminal justice participants make more effective and efficient use of these tools6

.

2. Investigative agencies must be brought into the planning process. Their efforts

often drive the acquisition and use of electronic information. Moreover, in order

to resolve discovery policy issues, care must be taken to accommodate potential

legitimate agency concerns about the security of agency investigative techniques. 

3. The judiciary should urge formation of local working groups in federal judicial

districts that include federal prosecutors, defense lawyers, and judges to consider

how best to address emerging uses of electronic data and technology that may

impact criminal prosecutions in their district.

4. The impact on juries of electronic technology, including how electronic

information can best be provided to jurors during deliberations, should be studied. 

5. The need, feasibility and usefulness of trial-specific document repositories on

secure Web sites to facilitate access to digital discovery should be examined.

6. The National Institute of Trial Advocacy should be asked to assist the bench and

bar with training by providing curricula for CLE training regarding electronic

technology in criminal litigation.

7. Private “panel” attorneys providing CJA representation typically do not have the

automation and litigation support resources or training available to them that are
Electronic Technology Page 6

7

 A revised Criminal Justice Act (CJA) guideline (paragraph 3.16 of the Guidelines for

the Administration of the Criminal Justice Act and Related Statutes, Volume VII, Guide to

Judiciary Policies and Procedures), approved by the Judicial Conference of the United States in

March 2001, recognizes that providing an adequate defense case may require CJA panel

attorneys to utilize computer hardware or software not typically available in a law office. In

such cases, following procedures outlined in paragraph 3.16, counsel may apply to the court for

authorization of CJA funds for the acquisition of such property, as well as for the utilization of

computer systems or automation litigation support personnel or experts.

available to attorneys in U.S. Attorney and Federal Defender offices.7 Entities

responsible for providing training and support services to panel attorneys should

address this disparity.

8. Each district court (or each division in larger districts) should consider promoting

and providing training on trial presentation equipment and methods not only to

court personnel, but to the attorneys in the criminal justice system.

9. The national policy makers from each of the constituent groups should investigate

and promote methods for providing training in electronic technology to users for

all stages of the criminal justice process. 

10. Consideration should be given to providing joint training for prosecutors and

defense counsel at a local or regional level that addresses local issues, procedures,

and practices governing the exchange, use, and presentation of electronic data in

local courts and circuits. 

11. Blanket rules that require digitization or electronic presentation in all cases should

be avoided. Many smaller cases simply do not require this effort. Likewise,

requiring a party in document-intensive cases to digitize extraneous material can

be a waste of human and monetary resources. 

12. Efforts should focus upon identifying required software and hardware capabilities

rather than specifying use of particular software (or hardware). In an

environment of accelerating change, standardization would blunt innovation and

creativity on the part of designers, investigators and trial lawyers. However, the

Working Group strongly believes that digitizing information in a format readable

by all parties, and with commercial, non-proprietary software, is preferred for

ease of discovery and use at trial.

B. DISCOVERY STAGE
Electronic Technology Page 7

8

 Law enforcement-investigative agencies also are part of this process and will be making

decisions during the investigative stage that should involve an evaluation of whether digitization

is appropriate in light of how the information they are gathering or generating will later be used

by the prosecution and defense during discovery and as part of courtroom presentations. An

example would be the use of digital technologies to record voice communications. See

Recommendation A.2 above.

1. As early in the process as possible, parties should evaluate whether digitization is

appropriate, considering the costs and benefits for case presentation, enhanced

comprehension by the fact-finder, and individual advocacy and trial strategy.8 In

this regard, government investigative agencies, United States Attorney’s Offices,

and defense attorneys should consider the desirability of: (a) generating

information in electronic form; (b) using software which is commercially

available; and (c) collecting, collating, and indexing information in a manner that

would, if desirable or necessary, facilitate the removal of attorney work product

or other privileged information from the electronic data. 

2. Absent significant justification, during the discovery process there should be no

degradation of electronic data from the state in which that information is

originally received by a party. For example, to the extent that a party gets

discoverable information from a third party in electronic form, the party should

produce the information in that same form when requested to do so. 

3. To the extent a party converts discoverable information into an electronic form, or

manipulates or organizes discoverable information that is in an electronic form,

two important interests may become implicated: (a) a “sweat equity” interest and

(b) a “value added” interest. 

a. “Sweat Equity”

(1) A “sweat equity” interest exists when the work performed by the

party does not implicate the work product or other privilege. 

Where the opposing party would have to perform the same or

similar work to make use of the discoverable information, a cost

savings may be achieved if the work product is shared with

opposing party. On the other hand, simply making the work

product available to the opposing party may not be fair, since both

valuable trial preparation time and significant fiscal resources may

have been expended in creating the work product.

(2) For example, the government may have spent time and money

converting discoverable paper documents into an electronic format

and creating a basic index of the documents by entering them into
Electronic Technology Page 8

9

 The use of commercially available software is encouraged. Such software is usually

copyrighted, and the parties would have to insure that their use of the software is pursuant to an

appropriate license. A party using software that is not commercially available should make that

software available to an opposing party if it is legal and practical to do so.

an electronic data base. In this circumstance, requiring a defendant

to independently convert the same paper documents into an

electronic format and then enter those documents into a

comparable electronic data base might not only be wasteful and

inefficient, but also could lead to difficulties at a trial or hearing if

the parties have used different electronic formats for the

documents they seek to exchange or present to a judge or jury

electronically. 

(3) Recommendation 

(a) Absent significant justification, a party that converts

discoverable information into an electronic form, or

manipulates or organizes discoverable information that is in

an electronic form, should make such products available to

an opposing party, assuming that the work product or other

privilege is not applicable to those products, and subject to

any cost-sharing arrangements to which the parties may

agree or the court may direct. In the example used above,

the database and necessary software9

 should be produced to

the opposing party in discovery, subject to cost sharing

arrangements. 

(b) It may be difficult to allocate costs equitably, particularly

when multiple parties with adverse interests are involved.

In order to address both the trial preparation time required

to perform the work and to help ensure that feasible costsharing arrangements are made, the parties should meet to

discuss electronic information discovery issues as early in

the case as possible. 

b. “Value Added”

(1) A “value added” interest exists when the work performed by a

party implicates the work product or other privilege. 

(2) In the example used above, the government converted discoverable

paper documents into an electronic format and created a basic
Electronic Technology Page 9

index of the documents by entering them into an electronic data

base. Decisions made by the government in selecting documents

for conversion, structuring the database, and choosing index

topics, may reveal mental impressions, conclusions, or opinions

about the documents such that disclosure of the documents

selected for electronic conversion, the index, or both may implicate

the work product or other privilege. 

(3) Recommendation

(a) Absent significant justification, a party that converts

discoverable information into an electronic form, or

manipulates or organizes discoverable information that is in

an electronic form, should make every effort to do so in

manner that makes it possible to make such products

available to an opposing party – perhaps in a redacted or

other form – without implicating the work product or other

privilege. 

(b) In the example used above, the parties might have met and

reached an early agreement regarding (i) which documents

would be converted to an electronic format, (ii) the

elements of a basic database indexing those converted

documents, and (iii) a cost-sharing arrangement for

completing this work. Such an agreement could produce

overall cost-savings without inhibiting the ability of any

party to convert additional documents of its own choosing,

or to further index or manipulate the data base once it was

created. Alternatively, the government might have been

able to produce a redacted database or take some other

measures that would have avoided the need to have defense

counsel simply receive the documents in paper form. 

C. PRE-TRIAL STAGE

1. Effective procedures must be developed for dealing with technological issues in

the trial process. All counsel should conduct a “meet and confer” session after

arraignment followed by prompt notice to the Court of the possibility of

electronic presentation and related issues.

2. At “meet and confer” sessions the parties should discuss: format of evidence,

discovery, cost, sharing software, electronic presentation, hardware, equipment

operator(s), trial court sight lines, and use of electronic information in openings,

closings and witness examinations.
Electronic Technology Page 10

3. The Court should be given notice as soon as possible of the proposed use of

electronic evidence, the suggested manner of presentation, relevant agreements

reached by the parties, and any unresolved issues.

4. Courts should conduct timely pretrial conferences to discuss and resolve issues

involving electronic discovery and presentation. 

5. The parties may wish to consider having their respective automation specialist(s),

if any, available to assist the Court and answer any questions.

D. TRIAL STAGE

1. Courtrooms should be appropriately equipped to allow parties and the court to

have access to digital resources and to utilize them in presentation. The Judicial

Conference has endorsed the use of technologies in the courtroom and, subject to

the availability of funds and priorities set by its Committee on Automation and

Technology, urged that (a) courtroom technologies–including video evidence

presentation systems, videoconferencing systems, and electronic methods of

taking the record–be considered as necessary and integral parts of courtrooms

undergoing construction or major renovation; and (b) the same courtroom

technologies be retrofitted into existing courtrooms or those undergoing tenant

alternations as appropriate. In support of this initiative, the Courtroom

Technology Manual (1999) provides technical standards for both the

infrastructures and the systems. 

Courts should offer general demonstrations and training on the use of the

technology that is available in the courtroom as well as pre-trial access to the

courtroom and its technology for practice and training. (Courts with courtroom

technology installed often have training programs in place and allow for such

access. The Federal Judicial Center presentation, “Developing Courtroom

Technology Training Programs,” recorded July 12, 2001, explains how to develop

training programs that enable court staff and attorneys to use technology in the

courtroom for the presentation of evidence.)

2. Courtrooms also should be fitted to accommodate additional hardware supplied

by the parties. If either party elects to use additional hardware with capabilities

different from that already provided in the courtroom, that additional hardware

should be made available upon request for use by the opposing party when doing

so would not unfairly disadvantage the producing party. The producing party also

should provide basic training on that hardware upon request, assuming that such

training does not require any significant expenditure of time or money. The

parties–and the court if necessary–should address these issues, including equitable

allocation of costs, as early in the case as possible. Many of these issues are

discussed in Effective Use of Courtroom Technology: A Judge’s Guide to
Electronic Technology Page 11

Pretrial and Trial (Federal Judicial Center and National Institute for Trial

Advocacy, 2001), which describes the substantive and procedural considerations

that may arise when lawyers bring electronic equipment to the courtroom or use

court-provided equipment for displaying or playing evidentiary exhibits or

illustrative aids during trial.

3. Appropriate means must be taken to identify and preserve electronic evidence and

presentations for the appellate record in an appropriate form.

V. CONCLUSION

Courts, the government, and the criminal defense bar must respond to the continued

development of “newer, better, and faster” data collection, electronic information, courtroom

presentation and other computer systems. Whatever impacts business and the human experience

will, in all likelihood be adapted for the courtroom. Each component of the criminal justice

system must prepare to deal with these innovations. The Working Group concluded that

promoting awareness of new technology capabilities, and identifying the issues that arise with

their use, will advance the fair administration of justice by promoting more effective and

efficient use of these tools. It is the hope of this Working Group that there will be continued

communication among all participants in the criminal justice process, consistent with the

recommendations it has offered. 
Appendix 1

ADMINISTRATIVE OFFICE/DEPARTMENT OF JUSTICE

 JOINT WORKING GROUP ON ELECTRONIC TECHNOLOGY

 IN THE CRIMINAL JUSTICE SYSTEM

Roster

Defender Members:

Anthony R. Gallagher, Chair

Executive Director, Federal Defenders of Montana

Great Falls, MT

David Shannon

Chief Assistant Federal Defender

Tucson, AZ

Department of Justice Members:

Ronald Levine

Chief, Criminal Division, U.S. Attorney’s Office

Philadelphia, PA

Jeanette Plante

Executive Office for U.S. Attorneys

Washington, DC

Jessica R. Herrera

Computer Crime & Intellectual Property Section

Criminal Division

Washington, DC

Stacy Joannes

System Manager, U.S. Attorney’s Office

Madison, WI

Administrative Office Members:

Steven G. Asin

Deputy Chief, Defender Services Division

Washington, DC

Robert Deyling

Chief, Judges Support Branch, Article III Judges Division

Washington, DC

Jeffrey M. Flax

National Technology and Litigation Support Administrator

Denver, CO
CJA Panel Attorney Representative

Frederick H. Cohn

Chief Panel Attorney Representative, Defender Services Advisory Group

New York, NY

Advisors and Assistants

Honorable John J. Hughes

United States Magistrate Judge

United States District Court

Trenton, NJ

Judith Mroczka

Attorney Advisor, Defender Services Division

Administrative Office of the U.S. Courts

Washington, DC

Michele Reed

Attorney Advisor, Article III Judges Division

Administrative Office of the U.S. Courts

Washington, DC

Lucien B. Campbell

Liaison to Criminal Rules Committee 

Federal Public Defender for Western District of Texas

San Antonio, TX

Steve Eiserman

Office of Information Technology

Administrative Office of the U.S. Courts

Washington, DC

Beth Wiggins

Senior Research Associate, Federal Judicial Center

Washington, DC

Meghan Dunn

Research Associate, Federal Judicial Center

Washington, DC

Kenneth J. Withers

Research Associate, Federal Judicial Center

Washington, DC
Appendix 2

SUMMARIES OF INTERVIEWS AND QUESTIONNAIRES

In the spring and summer of 2000, members of the Working Group gathered information

from a number of federal judges, federal defenders, Criminal Chiefs of United States Attorney’s

Offices, and Criminal Justice Act panel attorneys. Telephone interviews were conducted with

the judges; questionnaires were used with the other groups. These interviews and questionnaires

were not constructed or intended to be the basis for statistical inferences (respondents were not

randomly selected) but rather to get useful input from the "front line" players in the federal

criminal justice system. Brief summaries of the results follow.

JUDGES 

In Spring of 2000, telephone interviews were conducted with ten United States district

and magistrate judges. Most of the judges have courtrooms that are equipped to permit

electronic presentation of evidence either on court-provided equipment or on portable equipment

provided by counsel. The judges reported that currently a small percentage of their criminal

cases involved electronic or digitized evidence. Of that portion, child pornography, commercial

tax evasion and RICO were the most common cases that involved electronic or digitized

evidence.

The judges recognized that some unique concerns related to search and seizure may arise.

For example, in the case of a legitimate business accused of illegal activity, questions may arise

regarding whether all of its computer equipment should be seized as opposed to the hard drives

being downloaded. Otherwise, they did not feel that electronic or digitized evidence created any

issues that cannot be addressed based upon current law and practices. The judges also

disfavored implementing local or procedural rules regarding discovery of electronic evidence or

presentation during trial.

Two prevalent concerns among the judges regarding electronic presentation of evidence

were that evidence be presented in a manner and format that is useful to the jurors, and that there

be equity of resources between prosecution and defense counsel. Most judges found that pretrial

conferences early in the proceedings are a good way to address electronic evidence and

presentation issues. Others rely on counsel to advise them if there are any problems. A

consistent benefit of electronic presentation noted by the judges is that it reduces trial time and

forces counsel to be very organized and efficient in their case presentation.

CRIMINAL CHIEFS,

U.S. ATTORNEY’S OFFICES

Also in the Spring of 2000, the Executive Office for United States Attorneys sent a

questionnaire to the Criminal Chiefs in all 94 districts. The questionnaire, which was not

mandatory, did not purport to be a scientific survey. Rather, its aim was to elicit issues that might

be recurring in the area of electronic discovery in criminal cases. Approximately 30 criminal

chiefs responded to the questionnaire and of those that responded, not all responded to every
question. Nonetheless, the responses provided some insight into current issues and trends in this

area.

In general, districts reported that they do receive electronic information in their criminal

cases. A significant portion reported that the figure has increased in the past five years and they

expect further increases. Overwhelmingly, the electronic information appears most often in white

collar and child pornography cases, with some electronic information appearing in narcotics and

violent crime cases. Federal defenders and CJA attorneys appear as defense counsel in a

significant percentage of cases where electronic information is received. 

In addition to receipt of electronic information from law enforcement such as pen

registers/trap and traces, Title III wiretaps, documents and Internet related files (e.g., chat

logs; e-mails), the information often includes spreadsheets, databases, digital photos, graphics,

statistical analyses, and flow charts. The responses demonstrated that increasingly information

from sources other than law enforcement comes in electronic format. For example, a significant

number of respondents indicated that they receive electronic information from telephone

companies, financial institutions, victims, insurers, Western Union, and Internet service

providers.

For the most part, attorneys responding considered the use and organization of electronic

information beneficial and cost/effective but noted that such use requires different staffing

patterns, specifically, more computer-literate staff. Easier search and retrieval capability was the

most frequent reported basis for converting information to electronic format or entering the

information into a particular database.

Some respondents indicated that they had not turned over digital discovery for reasons

related to work product or other legal bases for refusing discovery. Some respondents noted that

sometimes discovery is provided only in hard copy form for practical reasons like lack of 

resources or lack of the training and familiarity necessary to digitize hard copy documents.

It appeared from the responses that in several jurisdictions, facilities are provided in the

United States Attorney’s Office for the defense to review information where the defense needs

assistance. A frequently expressed concern was that of requiring the Government to turn over

work product or the “value added” to digital information where the very choices made in

organizing the information might reveal work product or case strategy.

From a cost standpoint, several responding districts offered different solutions and most

indicated a belief that costs of electronic discovery should be equitably shared. In most

circumstances, it appeared that hardware is owned primarily by the court or the government. 

When the equipment is owned by the government, it is sometimes shared with the defense but

more often not shared. When the court owns the equipment, all sides obtained equal access.

Overwhelmingly, those responding indicated that the lack of electronic courtrooms,

trained automated litigation support staff and training for all personnel, attorney and support,

contributed to reduced use of electronic courtroom presentation.
CJA PANEL ATTORNEYS

In a survey of a small number of CJA panel attorneys in the Spring of 2000, respondents

indicated that they generally have not had much experience with courtroom presentations using

electronic technology. They did not report much receipt of electronic evidence, but they

predicted an increase over the next five years. They indicated that whether they receive such

evidence depends in part on the kind of case (more often in white collar and child pornography

cases than in narcotics cases) and the particular prosecutor. One respondent predicted that as

defense attorneys’ access to technology increases, the government will be more inclined to

provide information in electronic form. They did not report extensive problems with receiving

such evidence, i.e., when it is provided, it is usually in readable format; there were a couple

reports, however, of not having the necessary software to read the data. Panel attorneys said they

are not currently providing electronic evidence in reciprocal discovery; one commented that

he/she lacked the resources to do so. 

During the investigative and trial preparation stages, little use of technology was reported

with the exception of website use, scanning of documents, and the creation of searchable indexes.

Respondents saw some savings in time, e.g., in the time spent reproducing documents. One

observed that in a multi-defendant case, discovery was centralized so each attorney did not have

to do an initial review of all the material. Respondents indicated they are sharing electronic

information and/or databases with counsel for codefendants, sometimes pursuant to a joint

defense agreement.

All respondents said their offices were computerized and all had desktop computers; some

indicated use of networks and/or laptops. They reported that the computers are used for word

processing and billing, with some use of scanners, case management software, and data

organization software, but little use of case presentation software. There is little or no sharing of

hardware or software between defense attorneys and the prosecutors. Respondents reported a

great variance in the equipment available in the courtroom. There was strong support for the

provision of training, but also for making equipment available to panel attorneys. One active CJA

practitioner, who is technologically savvy himself, emphasizes that the top priority should be on

providing equipment; attorneys will learn how to use it if it is available. 

FEDERAL DEFENDERS

A survey responded to by approximately 20 percent of federal defenders showed a lack of

uniformity among districts, although most indicated a need for increased training and awareness. 

In general, defenders reported that they received electronic information in a small percentage of

cases; that percentage has increased in the last five years and they predicted it will continue to

increase. One defender reported asking for wiretap intercepts in computer format instead of tape

and receiving the response was that the government did not have the capability of producing it. 

Another commented that in cases involving converted data, it would be desirable to have an

agreement between the AO and DOJ as to which database and presentation software will be used

by the courts and the government. In one case, the defender office did not have the software

needed to view and manipulate the data in the format it was being used by the government; the

commercial software used by the government cost about $2,000. Reciprocal discovery in
electronic format is not being provided at this time. There is some sharing of electronic data with

counsel for codefendants, sometimes pursuant to a joint defense agreement. Acting as

coordinating counsel in a 52-defendant RICO/gang case, one defender office was the driving

force behind the conversion of thousands of pages of discovery materials into an electronic

format, which was available to all attorneys in the case for pretrial preparation and use in the

courtroom during trial. 

One senior litigator commented that he or she had not used electronic information in

enough cases and circumstances to hazard an opinion on whether it is cost effective, adding that

the issue is complicated and heavily dependent on a myriad of factors. For instance, scanning and

OCR (turning information on paper into both pictures for looking at and digital text for searching

and manipulating) is labor-intensive, but once done the data is available to other parties and the

court at very little incremental cost. For very large numbers of documents, the storage costs of

electronic data are negligible compared to space rental and management fees. The litigator

predicted that there will be more and more use of electronic information over time, making the

cost of not using it unacceptable. 

Defenders reported wide variations in the amount and type of equipment provided by the

court. One computer systems analyst noted that many courtrooms don’t have the requisite

cabling, equipment, or electrical outlets to accommodate the use of electronic presentations at

trial and that very few courtrooms have been designed with space for monitors, projectors,

screens, and computers. 
Appendix 3

OTHER WORKING GROUPS

1. Department of Justice/Electronic Litigation Files Program Office (ELF). This program

was recently created within the Department of Justice to address issues and arrive at solutions for

attorneys, systems and support staff who increasingly confront issues related to electronic case

filing and electronic litigation files.

2. Federal Public Key Infrastructure Steering Committee (FPKI). The FPKI Steering

Committee is tasked with providing Government-wide guidance and coordination of Federal

activities necessary to implement a public key infrastructure. The FPKI Steering Committee

coordinates, monitors, implements, and reports on the development of a public key infrastructure

to support secure electronic commerce and electronic messaging as well as other Federal agency

programs requiring the use public key cryptography.

3. Electronic Commerce Working Group (ECWG). The ECWG is a group of Department of

Justice attorneys that regularly exchange information and address issues related to litigation and

technology issues.

4. Case Management/Electronic Case Files Project. CM/ECF is the new electronic case

management and electronic case files system for the federal courts. It provides federal courts

enhanced and updated docket management and allows courts to maintain case documents in

electronic form. It provides each court with the option of permitting case documents --

pleadings, motions, petitions -- to be filed with the court over the Internet. CM/ECF

implementation in the bankruptcy courts has already started. District court implementation will

start in 2002 and appellate court implementation in 2003. See:

http://www.uscourts.gov/cmecf/cmecf.html

5. Judicial Conference Committee on Court Administration and Case Management,

Subcommittee on Privacy and Public Access to Electronic Case Files. The subcommittee was

formed in summer 1999 and made recommendations to the Judicial Conference in summer 2001. 

In September 2001, the Judicial Conference approved new policies on public access to electronic

court records. See: http://www.uscourts.gov/Press_Releases/jc901a.pdf

6. Federal Rules of Procedure. New provisions of the Federal Rules of Procedure, which took

effect December 1, 2001, expressly authorize the electronic exchange among parties of

documents such as pleadings, motions and briefs when parties have consented in writing. The

rules also permit courts to serve court orders electronically if parties consent. See:

http://www.uscourts.gov/Press_Releases/elec.pdf