New Rule of Federal Criminal Procedure Points to Guidelines for ESI Production

A new addition to the Federal Rule of Criminal Procedure became effective on December 1, 2019. Rule 16.1 now requires parties to agree on a timetable and procedures for pretrial discovery within 14 days of the arraignment of a defendant. The committee note to the new rule states that the new deadline is of special importance in cases involving ESI; voluminous document production; or complex discovery.

While acknowledging that this new rule does not specify particular steps the parts should follow, it does recommend guidelines for counsel to follow. "Because technology changes rapidly, the rule does not attempt to state specific requirements for the manner or timing of disclosure in cases involving ESI. However, counsel should be familiar with best practices. For example, the Department of Justice, the Administrative Office of the U.S. Courts, and the Joint Working Group on Electronic Technology in the Criminal Justice System (JETWG) have published 'Recommendations for Electronically Store Information (ESI) Discovery Production in Federal Criminal Cases' (2012)."

Courts still retain authority to set a discovery timetable and procedures, and the rule states that parties can request that the court modify time and manner of discovery for the purpose of preparing for trial.