United States: NJ Appellate Division Gives Expanded E-Discovery Nod In Criminal Case Illustrating Role Of Fundamental Constitutional Rights Based Arguments In Absence Of Defined Criminal E-Discovery Scheme

SPOTLIGHT ON STATE V. HERNANDEZ,  2014 WL 7506761 (App. Div Jan. 12, 2015)

Lixandra Hernandez and Jose Sanchez ("Defendants") are facing pending drug charges in Hudson County, New Jersey.  Unless or until they are convicted beyond a reasonable doubt by a jury of their peers, they are presumed innocent.  After a ruling by the New Jersey Appellate Division this week, their lawyers have another weapon in their arsenal with which to attack the State's case against  them.

In the course of discovery, prosecutors disclosed that part of the evidence they intended to present at trial against the Defendants was gleaned from a  cooperating witness ("CW").  Specifically, the State claims that the CW had purchased cocaine from the Defendants on multiple occasions.  Part of the State's discovery production to the Defendants included, among other things, certain identifying information about the CW poised to testify against them at trial.  Discovery also revealed that the CW was helping the State bring cases against other, unrelated defendants.

The Defendants sought additional discovery from the State regarding the nature of the CW's cooperation in these unrelated cases, arguing that the information was crucial to an understanding of the CW's potential biases against the Defendants.  The trial court ordered the State to produce a broad swath of material regarding the CW's role in helping authorities investigate and prosecute others, including e-mails gleaned from a search for the CW's name in the State's computer systems, among other more traditional investigative reports and records, for an in camera review.

The State objected to the e-mail search ordered by the trial court on a number of grounds on appeal, including that it was irrelevant, that it invaded protected work product, and that it would put the safety of the CW in jeopardy.  The Appellate Division rejected each of these arguments in favor of permissive discovery ". . . rationally related to defendants' right to confront a key state witness as to potential bias, prejudice or motive and [that] is relevant for that purpose."  In other words,  the defense successfully linked the requested emails to the Defendants' fundamental constiutional rights to confront their accusers.

As both a civil and criminal practitioner immersed in the topic of e-discovery, I am keenly aware of the fine line distinctions that separate criminal e-discovery cases from their "civil analogues" — a phrase that many criminal courts have used when borrowing from or distinguishing the comparatively robust body of civil jurisprudence and rules driven schemes on the subject of e-discovery in connection with a criminal case.  The fact of the matter is that there aren't any criminal e-discovery rules, even as technology continues to change our lives, resulting in more and more criminal cases with an e-discovery component.

Granted, in the federal criminal system there are a set of protocols for e-discovery, developed by the Department of Justice/Administrative Office of the Courts Joint Working Group on Electronic Technology ("JETWG").  Yet, the JETWG protocols are largely aspirational, and although many courts have adopted them as if they were drafted as mandatory e-discovery compliance standards, there is no inherent barometer of fairness for the e-discovery process in a criminal case like there is in civil cases, at least not one that was specifically designed with that role in mind.  Thus, like in Hernandez, defense attorneys are relegated to more traditional concepts, like emphasizing the interplay between the digital evidence sought and the constitutional rights of the accused.

In an earlier post for this blog, entitled 'E-Discovery Doesn't Have To Be A Dirty Word,' I explored the inherent fairness of the federal civil e-discovery scheme, full of checks and balances.  At a time when more and more criminal prosecutions are built around tens of gigabytes of data by virtue of the mere fact that our society is now, more than ever before, technology-centric, the need for comprehensive e-discovery reform in the criminal system is apparent.  For each case like Hernandez, where the rights of the accused are secured because skillful lawyers are able to articulate a constitutional basis for the e-discovery requested, how many cases exist where courts simply give e-discovery in a criminal case — especially cases involving alleged crimes without a clear technology component — the backs of their hands?  It is about time that a comprehensive, mandatory e-discovery scheme is developed to protect the rights of the accused.  It no doubt will take on a completely different look and feel than its civil analogue given the parties, their interests, and the potential ramifications, but those among us that view the rights of an accused as sacrosanct stand ready, willing, and able to take up the task.

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