Directive to Collect Less Evidence

“Prosecutors struggling to pore through mushrooming amounts of electronic data they uncover during corporate crime investigations are beginning to hear counterintuitive advice from the Justice Department: Collect less evidence. The nascent strategy of selectively seizing fewer computers, cell phones, and hard drives coincides with an exponential growth of available e-data. It comes amid repeated DOJ failures in processing and turning over evidence to the defense.” Ben Penn, Prosecutors Drowning in Data Urged to Collect Less Evidence (bloomberglaw.com) (June 15, 2022).  Mr. Penn reports:

The government’s growing disadvantage against deep-pocketed defense firms with high-powered computer analysis tools is adding urgency to the evolving approach.

The consequences for DOJ were highlighted this spring when the department settled an alleged mortgage fraud conspiracy for $3,000 in maximum losses—after initially valuing the loan scheme at $500 million. The judge first admonished prosecutors for a “disturbing inability” to handle all the data.

I wrote earlier about one issue facing federal prosecutors.  Feds Can’t Hire ESI Vendor in Capitol Siege Criminal Cases.  There, grand jury secrecy requirements prevented hiring an e-discovery vendor.

The problem of handling voluminous ESI in criminal cases is nothing new, as reflected in my blog of a decade ago. “Too Much Evidence” – Criminal Charges Dismissed.  That case involved two terabytes of information and took up roughly five percent of the Drug Enforcement Administration’s storage space.

Bloomberg reports that: “US attorney’s offices are now storing 10 times the amount of electronic data they had just six years ago, according to DOJ’s budget request for fiscal 2023. That volume—more than 4 petabytes of information—is projected to double again by next year.”

DOJ’s response is to roll out a “smart collection” approach, according to Mr. Penn.  “[T]he department’s education program will emphasize avoiding over-collections and reducing the scope of information that’s retained from seized devices.”

Mr. Penn notes that the DOJ approach is not without critics: “It ‘could be a disaster,’ said Rhett DeHart, a former acting US attorney in South Carolina. ‘I always wanted to get as much information as I reasonably could and turn over as soon as possible, and just put all the cards on the table.’”

In the interview this month, DOJ officials, who were granted anonymity, acknowledged that under-collection of evidence also carries risks and that getting buy-in across the department to restrict seizures remains a work in progress. They also stressed limiting searches won’t be practical in every case.

Id. Bloomberg reports that:

DOJ continues to ask Congress for more funding to help close the IT disparity with Big Law and improve its ability to cull through the data.

For instance, the department requested an extra $27 million for US attorneys offices in the next fiscal year on “eLitigation modernization,” encompassing 52 new positions and technological upgrades. That proposal is pending before Congress.

More training and selective hiring of discovery software experts was also under consideration as a recommendation…. As is, DOJ devoted up to $1.5 billion in e-discovery vendor services through a mega contract awarded in 2020 that lasts through 2027.

But with the level of e-data growth only expected to outpace government resources, tasking DOJ prosecutors to refine their searches may be the more realistic, if imperfect, proposal.

Id.