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Editorial Advisory Board: Digital data and the legal system

In today’s world, data reigns supreme. Almost everything involved with communication, transportation and computation is stored in some form or fashion in the digital data netherworld, and as a result it is becoming commonplace for the government and private entities to collect and dump tremendous amounts of digital information during the course of litigation.

Sometimes this happens due to good-faith adherence to discovery rules or requests, and other times it is nothing more than a tactic to burden an opponent under the guise of good-faith disclosure. It is time for the courts to start addressing the volume of digital data that is beginning to bombard our system of justice.

A terabyte is a system of measuring the quantity of digital data. Some estimates show a single terabyte is the equivalent of 500 hours of HD video. In state criminal cases, it is not uncommon to receive four or more terabytes of data in a single drug conspiracy.

In the criminal justice system, the problem with digital data is reaching its breaking point and will likely become the battleground for change. Most criminal defendants are indigent and ultimately represented by the Maryland Office of the Public Defender, who must find ways to download, store and review hundreds of thousands of terabytes of digital information a year.

Even private defense attorneys struggle to review all the discovery provided in some cases without raising their fees and could spend months reviewing discovery for one case.

The inclusion of body camera now permeates most aspects of policing. Body cameras have the potential to protect both police and defendants, but everything comes with a downside.

In the case of a body camera, it adds significantly to the volume of information and the time it takes to be reviewed properly. Six officers at the same scene for an hour each takes a one-hour event and makes it six hours. Simple drug cases can have 6-to-10 hours of footage and a homicide can easily have 20-plus hours. No longer limited to multi-codefendant drug conspiracies, cases exceeding a terabyte are rapidly becoming the new normal.

The current situation creates a struggle to balance the need for full and complete disclosure for criminal defendants with the need to prevent irrelevant and duplicative information from flooding those same defendants. Maryland Rule 4-263(d)(9) requires the state to show the defendant any exhibits it intends to use at trial, but there is no time frame as to when or how this is to be done. Without any guidance as to those issues, among others, in its current form Md. Rule 4-263 alone lacks the teeth to solve the problem.

The solution may lie in allowing defendants to request a hearing wherein the defendant would seek to limit the scope of the discovery to only what is relevant to the charges the defendant faces.

This hearing could consist of two parts. In part one the defense would bear the burden of showing that the volume of discovery is unreasonable. The court might consider factors such as the volume of the discovery that the defendant has received, efforts made to review discovery, timing of disclosures, speedy trial and Maryland Rule 4-271, and other specific issues with the discovery. If the quantity of the discovery is found to be unreasonable the hearing would shift to part two.

In part two the court would conduct a balancing test where the court would balance the defendant’s right to properly prepare their case in a timely manner against the state’s right to withhold their trial strategy. The court would then be able to fashion an order dictating how the matter is to be resolved.

In cases that warrant such a response, the court could order the state to provide specific information concerning what exactly they intend to use and how and where it can be found.

In the end, like the speed of automobiles and the range of telephones, the volume of digital data will only continue to increase. Our system of justice has been able to provide frameworks in which automobile and telephone evidence makes its way into the court system despite the expansion and evolution of those modern conveniences. Now is the time for the court to start dealing with the volume of digital data as the next modern challenge.

Editorial Advisory Board members Arthur F. Fergenson and Nancy Forster did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

Julie C. Janofsky

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.