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ESI: Civil rules in criminal court

Five years after the Maryland Court of Appeals first set the standards for gaining access to electronically stored information (ESI) during civil lawsuits, the Rules of Criminal Procedure remain silent on the topic.

Criminal defense attorneys cannot cite the unreported opinion as precedent, but they may look to it as a guide. ‘Word’s getting around,’ attorney Francis J. Gorman says.

However, a recent decision by the Court of Special Appeals offered a solution.

“Pending further instruction by the Court of Appeals or an amendment to the Maryland Rules,” Judge Christopher B. Kehoe wrote for the panel, “parties and courts in criminal cases should look to civil ESI procedures for guidance in framing and dealing with ESI discovery requests.”

The appellate court ordered a new trial for a man accused of molesting a minor, in part because of the way the Montgomery County Circuit Court had handled his request for the digital file of a creative writing exercise by his alleged victim.

The lower court had ruled that a printout of the story was sufficient. The Court of Special Appeals reversed.

While there is no special rule for discovery of ESI in criminal matters, prosecutors are clearly required to share “exculpatory and impeachment” information with the defense “in any form,” Kehoe wrote.

That includes electronically stored information, the panel concluded.

“Because ESI includes information not visible in or apparent from the text of a document, a paper copy of the document, which lacks access to much of the ESI described above, is insufficient to satisfy a defendant’s request for production of ESI when it has otherwise been established that the ESI is relevant to the action,” Kehoe wrote.

For example, the digital record includes metadata, which tracks creation dates, modifications made and other information.

“Metadata is data about data,” said W. Lawrence Wescott II, who chairs the Technology Committee of the Maryland State Bar Association’s Litigation Section and has written columns on ESI for The Daily Record. “It describes data.”

“It would certainly make sense that they should have guidelines on the criminal side,” Wescott said.

The unreported decision in Gundepudi v. State, filed on March 26, carries no weight as legal precedent, but it provides direction for criminal attorneys to make ESI discovery requests.

“It’s kind of neat for us now to have a tool to ask for this stuff intelligently, which we didn’t have before,” said attorney Mirriam Seddiq, who represented the defendant during his appeal.

While Seddiq could have asked the Court of Special Appeals to report its decision, she declined to do so, citing the ongoing legal action.

“We are happy it’s not published because the less my client’s name is out there, the better for him,” Seddiq said.

Be precise

Nevertheless, Seddiq said the decision would be helpful in providing details for electronic discovery, which had eluded the defense team in criminal court.

Criminal defense attorney Robert Bonsib, of MarcusBonsib LLC in Greenbelt, agreed that the decision provided “good food for thought.”

The opinion, he said, highlights the need for lawyers to be precise when requesting access to electronically stored data.

“There is a way for you to get it, but you have to think very carefully,” he said. “You can’t just use a general term like ‘digital file.’”

Specifically, the Court of Special Appeals found that defendants must frame their requests “with reasonable particularity.”

“[Phani Kumar] Gundepudi should have explicitly requested the ESI he desired — for instance, the metadata associated with the creative work — rather than simply requesting the ‘digital file,’” Kehoe wrote. “Gundepudi also should have requested the form in which he desired this ESI to be produced.”

The case was remanded for retrial with the instructions that the criminal court review all of the defendant’s ESI requests under the guidelines established by the state’s rules for civil cases.

“On remand, if Gundepudi makes ESI requests that are reasonably particular in scope and form, rather than dismiss Gundepudi’s requests in light of the State’s production of a paper copy of the creative work, the circuit court should evaluate each of Gundepudi’s ESI requests and determine whether the ESI requested is relevant to the case, and if so, the proper form in which the ESI should be produced.”

Under Maryland Rule of Civil Procedure 2-422, lawyers requesting ESI in civil cases must name the form of the data and then agree with opposing counsel on the specific terms.

“Search terms are key,” said attorney Francis J. Gorman, of the Gorman & Williams law firm, because they determine the scope of the computer search.

Federal framework

The Maryland guidelines look to the federal framework for use of ESI, codified by amendments to the Federal Rules for Civil Procedure, but only in a general sense, Gorman said.

“You can’t really say the Maryland civil rules mirror the federal rules,” he said. “The federal rules are a lot more fleshed-out. They are more developed.”

The difference, Gorman said, reflects the extent to which federal and state civil courts have dealt with ESI cases. While the federal courts have heard an abundance of high-profile cases involving ESI, such as white-collar crime, Maryland courts have dealt with ESI in fewer matters and in lower-profile cases, such as divorces.

Joseph Murtha, a criminal defense attorney at Miller Murtha & Psoras LLC who represents clients in both state and federal courts, said the disparity in rules reflects the court’s adaptation to changes in technology.

Civil courts, he said, have wrestled with more sophisticated modes of digital storage.

“Procedural aspects of litigation adjust as technology advances,” he said.

Similarly, Gorman said the federal criminal investigations are more likely to turn up requests for ESI than cases brought by the state, but rules on both levels are still lacking, leaving civil procedures to guide attorneys.

The Federal Rules of Civil Procedure are not the only guidelines for attorneys in the state. In Maryland’s federal courts, a standing order drafted with the advice of technical consultants offers a framework for the scope and procedures of ESI searches.

“It lays out the best practices for the discovery of ESI in a pretty specific and detailed way,” Gorman said.

Though criminal defense attorneys cannot cite the unreported Gundepudi opinion as precedent, they may look to it as a guide.

“It can be used to persuade a judge that, even though it is not reported, it has been addressed in court,” Murtha said.

Gorman agreed that the opinion could be a step in the right direction.

“I don’t know why the judge didn’t publish the opinion, but the word’s getting around,” Gorman said.

“It’s decisions like this one that are pushing the prosecution and criminal defense lawyers into discovery of ESI,” he said.