2008-08-19 Government Ordered to Perform ESI Search, Provide Detailed Privilege Log in Criminal Case

In the second instalment of U.S. v O'Keefe, 2006-cr-0249 (D.C.D.C. 2008), Magistrate Judge Facciola extends the adoption of ESI discovery principles to criminal matters. In this decision, the Court first requires that the Government stop equivocating as to the existence of ESI, and

"examine the pertinent files and state unequivocally whether it is in possession of any documents that would fall within this discovery request, i.e. whether there have come into existence since April 1, 2006 written matter, to include electronically stored information, such as Department analyses, or other documents that concern or mention the 21 employees specified in the discovery request. It must also produce them.

Judge Facciola then applies FRCP Rule 26 to the instant criminal proceeding:

"If it believes that any of them are privileged and seeks to withhold them, then I will once again borrow a rule from the Federal Rules of Civil Procedure and require the government to "describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5). I expect this document, most commonly called a "privilege log," to so explicitly describe the documents that in camera review is unnecessary. See Victor Stanley, Inc. v. Creative Pipe, Inc., --- F.R.D. ---, 2008 WL 2221841, at *10 (D. Md. 2008)."

The first O'Keefe "borrowing," which imported Fed R. Civ. P. Rule 34 ESI discovery principles, was blogged here on 2008-02-20. The Victor Stanley decision discussing keyword search efficacy challenges was blogged here 2008-06-03. Judge Facciola's insistence on a meaningful (i.e., detailed) privilege log has significant implications for civil as well as criminal proceedings. Privilege logs are typically scant, and often go unchallenged by the requesting party. A detailed privilege log may reveal that a document is not privileged, expose discovery abuses, or constitute an admission. While assuming that the work product privilege applies in criminal cases, Judge Facciola leaves for another day (and further briefing) whether the privilege "if it applies, could trump either the government’s discovery obligation or its constitutional obligation to produce evidence that would tend to exculpate the defendant."

Link to the decision:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cr0249-129