When the defense disclosed what it would be arguing at trial, the government used a computer expert to extract "Skype chats" that couldn't be seen by simply opening folders or searching on the computer. They had to be extracted by an expert. After the defendant testified, the government disclosed a 214 page log of the chats to the defense and called its expert in rebuttal. The defendant was convicted.
Judge Altonaga ordered a new trial (here's the order):
The Government never advised the defense of the existence of the information obtained by Agent Etter. It simply never told defense counsel that incriminating Skype chats could be extracted from the disk or that they even existed. It did not turn over the communications until the morning of its expert’s testimony, near the end of the trial. As the Defendant explains in his Reply [ECF No. 207], "[production of something in a manner which is unintelligible is really not production." (Id. 3). This is not like the cases cited by the Government in its Response [ECF No. 204] or Surreply [ECF No. 210], where courts have consistently refused to require the Government to identify exculpatory or inculpatory evidence within a larger mass of disclosed evidence. This case brings to the fore the challenges presented when electronically stored information is produced in discovery.This is an important ruling by a judge who understands the difficulties that are presented by e-discovery in federal criminal cases. A number of cases around the country have started saying, like Judge Altonaga, that e-discovery in criminal cases must be produced in a reasonably usable form. Not only did the government not do that in this case, but then it didn't even confront the defendant with the material and waited until rebuttal to use it.
Commenting on the implications of criminal ESI production, the court in United States v. Briggs recently observed that while the Federal Rules of Civil Procedure need not be adopted as the standard for production of criminal ESI, the standard of Federal Rule of Civil Procedure 34(b)(2)(E)(ii) should apply and the Government be required to produce ESI in a reasonably usable form. See No. 10CR184S, 2011 WL 4017886, at *8 (W.D.N.Y. Sept. 8, 2011). If, in order to view ESI, an indigent defendant such as Stirling needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information. In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form. Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial.
The Court witnessed the damaging impact the Skype communications had on Stirling’s credibility. His testimony was largely discredited without opportunity for rehabilitation or for the selection of a reasonable defense and trial strategy by counsel. Consequently, the interest of justice requires that he be afforded a new trial where he and his counsel can make an intelligent decision regarding whether and how he should testify.
Big congrats to Sabrina Puglisi for the big win and bringing this issue up in this District.
Meantime, Rumpole has all of the coverage of Bill Matthewman's big win in a state murder case yesterday. What a sweet way to head into his new life as a magistrate. He gets to end his trial practice with a huge NG. Well done.