Deputy Attorney General James M. Cole Speaks on the Overview and Significance of the Joint ESI Protocol

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Thank you. It is a pleasure to be here at Georgetown Law Center today, and a privilege to join you in discussing the new electronically stored information or ESI protocol.

As some of you know, I’ve had the privilege to teach public corruption law and legal ethics for many years as an adjunct professor here at Georgetown. This subject matter – and the need for every attorney to meet the core obligations, and uphold the important values, that have always defined our nation’s legal system – has been a personal passion of mine ever since I started my career in public service.

More than three decades ago, when I joined the Justice Department’s Public Integrity Section as a young attorney, I began prosecuting corruption cases against elected and appointed officials who violated the public trust. Working with my dedicated colleagues, including Attorney General Eric Holder, I learned to uphold the highest standards of professionalism and accountability. I also learned that the goal of every federal prosecutor is not just to win cases, but to do justice.

That was, and remains, one of the Department’s fundamental, bedrock values. Every day, throughout our nation, federal prosecutors are working hard to keep our communities safe and to ensure that criminals are brought to justice – but also to ensure that this is done honorably and ethically. This is a commitment that the Attorney General and I have taken seriously since the day we entered the legal profession. It’s an obligation and a hallowed tradition of the Department of Justice that has guided the service of our prosecutors for decades. And it’s a moral imperative that is not only reinforced – but strengthened – by the critical new protocol we’ve gathered to discuss this evening – and which is designed to ensure efficient and effective discovery between the Government and criminal defendants.

Over the last three years, the Attorney General has taken unprecedented steps to provide federal prosecutors and other law enforcement officials with the tools, resources, and training they need to meet their discovery and other ethical obligations. Today, it’s my privilege to highlight some of the progress we’ve made – and to provide a detailed overview of our ground-breaking ESI protocol. And it’s especially appropriate that we hold this discussion at one of the top law schools in the country, and particularly on of the top schools in the field of e-discovery.

As many of you know – particularly the law students for whom texting, tweeting, and Facebook are part of everyday life - most information today is created and stored electronically. Electronically stored information, known as “ESI,” presents an opportunity for much greater efficiency and substantial cost savings for the entire criminal justice system, particularly in the representation of indigent defendants. But, in order to take advantage of that opportunity, and to avoid unnecessary costs and delays, criminal practitioners have a responsibility to educate themselves – and utilize best practices – when it comes to managing ESI discovery. And this is crucial when it comes to disclosure of ESI under the Constitution - disclosure of exculpatory material under Brady v. Maryland, impeachment material under Giglio v. United States, statements of witnesses under the Jencks Act, and discovery under Rule 16.

Before we discuss the ESI protocol itself, a little history may be in order. As described in the Introduction section of the protocol, back in 1998, the Joint Electronic Technology Working Group (JETWG) was formed to address best practices for discovery of ESI between the Government and defendants in federal criminal cases. JETWG was established by the Director of the Administrative Office of the U.S. Courts (AOUSC) and then Attorney General Janet Reno. The JETWG consisted of representatives from the Department of Justice, federal public defenders offices (FPD), Criminal Justice Act lawyers (CJA), and liaisons from the United States Judiciary.

In 2007 the Judicial Conference of the United States endorsed the JETWG’s protocol for electronic technology – which at that point, in what now seems like the Stone Age, was focused on how many dots per inch were required when scanning documents. The JETWG then became dormant.

In 2009 the JETWG was revived. As is so true in digital matters, much had changed in the two years since the JETWG had done its work. Starting in early 2010, our newly-appointed National Criminal Discovery Coordinator, Andrew Goldsmith, met with the Federal Public Defender’s National Litigation Support Administrator, Sean Broderick. And the collaborative relationship that led to the new joint ESI protocol began.

The Department then assembled a small working group consisting of senior prosecutors and IT experts from around the United States to work closely with representatives of Federal Public Defender and CJA. Included in this group were prosecutors who were part of JET-WG when it became dormant in 2007 to ensure some degree of continuity. Over the next two years, the working group met on a number of occasions with representatives from Federal Public Defender and CJA and exchanged numerous drafts of the protocol. Everyone agreed that misunderstandings about basic principles of ESI often led to unnecessary expenditures, as well as unnecessary motion practice. In October 2010, representatives from the Department and Federal Public Defender met with and discussed the potential protocol with the then-Director of the Federal Judicial Center, who recognized its beneficial impact on criminal cases. In January 2011, they spoke with the Head Defenders at the national FPD conference in South Carolina, and they, too, were quite enthusiastic.

That timing has significance to me as well on a personal level. In early January 2011, I returned to the Department after 19 years in private practice. And while many things were similar to when I had left the Department in 1992, certain things had changed. None more so than the impact of ESI on civil and criminal litigation. And having grown accustomed to law firm practice, one of my first priorities was to ensure that lawyers for the Department had the tools, resources, and training to carry out their day-to-day responsibilities in the digital information age.

When I came to the Department I was heartened to learn that an effort had been underway for a year to tackle this problem in the criminal arena, which had traditionally been a few steps behind the civil. Over the next twelve months, the Department’s working group, in close collaboration with their Federal Public Defender/CJA counterparts, refined the protocol. It was also reviewed by additional senior prosecutors, IT personnel, paralegals, and our law enforcement colleagues in the Department, which resulted in further improvement.

Then, in early 2012, the group came up with the product that you see today. In February of this year, it was my privilege to distribute the joint protocol to federal prosecutors and other law enforcement agencies within the Department. That same day, the protocol was also sent by Administrative Office of US Courts to federal public defenders, CJA panel attorneys, and members of the judiciary.

I’d like to recognize those members of the Department who were – and continue to be – part of that critical working group. They include: Andrew Goldsmith, National Criminal Discovery Coordinator; John Haried, Assistant National Criminal Discovery Coordinator; Christine Riddell, Manager, e-Discovery for the Antitrust Division (who was working with the Criminal Discovery Coordinators on a 6-month leadership detail); Mary McCord, Deputy Chief of the Appellate Division for the U.S. Attorney’s Office for the District of Columbia; John McEnany, Associate U.S. Attorney for the U.S. Attorney’s Office for the Southern District of New York; and Barbara Sale, Chief of the Criminal Division for the U.S. Attorney’s Office for the District of Maryland.

While the upcoming panel will discuss the protocol itself in much more depth, there are a few points I want to emphasize. As a threshold matter, the fact that the protocol is a collaborative effort reinforces and supports the spirit of cooperation embodied in the protocol. Further, the structure of the protocol is significant. First, there is an Introduction, which lays out a series of core principles and contains hyperlinks to the detailed guidance contained elsewhere in the protocol. Second, there is a set of basic Recommendations, which offers general guidance on the production of ESI. Third, the Strategies and Commentary section expands on the Recommendations, by offering technical and more particularized guidance. And fourth, the protocol concludes with a one-page ESI Discovery Production Checklist. This four-part structure will allow prosecutors, defense attorneys, and the judiciary to access guidance concerning ESI discovery at the level of detail most appropriate to a particular case or circumstance.

Some of the highlights of the protocol that I know will be discussed in more depth include: the types of cases for which the protocol will apply (not every case needs this type of process); that attorneys have a responsibility to understand the basic principles of e-discovery (We are all going to have to bite the bullet and enter the digital age); the importance of involving individuals with sufficient technical knowledge and experience in dealing with ESI (No matter how much we may learn, we’ll still need the experts); Reemphasizing the meet-and confer process (which is important in all types of cases); the importance of notifying the court about ESI discovery issues or problems early, before the problems get out of control; and the importance of making good faith efforts to overcome the inevitable misunderstandings and resolve ESI discovery disputes without filing motions unnecessarily.

We’ve already received very favorable feedback from the judiciary, the defense bar, and the technical press about the protocol. In the next few months, some of the same people you will hear on the upcoming panel will participate in training conferences around the country on the protocol. And, consistent with the Department’s long-term commitment in this area, we’ve already started efforts to train every one of our prosecutors on the protocol. In the near future, we plan to participate in joint training efforts with our Federal Public Defender and CJA colleagues, too. And we expect to work with the Federal Judicial Center to assist in training members of the federal bench. Along these lines, Mr. Goldsmith and Mr. Broderick will be speaking about the protocol next week at the Conference for Chief Judges of U.S. District Courts, sponsored by the Federal Judicial Center.

All of us at the Department of Justice recognize that meeting our Constitutional and statutory discovery obligations in the electronic information age will be critical to maintaining public confidence in the criminal justice system. You can rest assured that we are committed to meeting our obligations.

As you can see, this is a very exciting time in this area. This is a great program that Georgetown has arranged for you this evening, and a unique opportunity for all of you to get in early on this ground-breaking effort. Thank you for your time and attention and with that, I’ll turn it over to Judge Hogan.