This article explores how issues concerning electronic evidence and discovery (e-discovery) and its associated electronically stored information (ESI) are not relegated to civil litigation, and that the subject matter has an equal impact on criminal litigation. The folloewing suggests a rapidly growing need for courts to uniformly recognize the increasing necessity for an accused to access ESI in order to effectively build a defense in modern-day criminal prosecutions where the context in which the ESI was forensically ascertained may be as important to a defendant as the content of the information recovered.
Section I introduces the subject matter of e-discovery and ESI. Section II addresses the manner in which civil litigation pioneered a judicial focus on codifying specific rules of civil procedure governing the pretrial exchange of ediscovery. Section III delves into the manner in which the criminal justice system appears to be handling e-discovery in criminal matters. It further discusses an arguable disconnect between traditional rules of criminal procedure addressing pretrial discovery and the growing need for modernization of the rules in criminal proceedings to specifically direct parties on how to uniformly interact concerning ESI where such directions exist in civil litigation matters. Moreover, Section IV addresses the concern that the status quo of e-discovery in criminal matters places parties that lack financial resources at a substantial disadvantage, as opposed to those who are able to retain legal counsel to navigate e-discovery issues. Section V discusses the constitutional implications surrounding e-discovery in criminal matters. Sections VI and VII discuss a proposal for a “balancing test” and possible pretrial discovery tools for the exchange of ESI beyond that which is contemplated in more traditional rules of criminal procedure currently followed by the courts. . .