United States v. Salyer, Cr. No. S-10-0061 LKK [GGH], 2011 WL 1466887 (E.D. Cal. Apr. 18, 2011)

“Unlike the usual discovery dispute—not enough produced—the dispute between the parties [in this case] involves too much produced, in too many formats, and whether the defense has been given a fair opportunity within the parameters of an adversary system of criminal justice to make use of that discovery.”

Defendant Salyer, “the one-time head of a large food processing company” was charged with racketeering, falsification of records and antitrust violations.  The discovery in the case was immense: “It is probably no exaggeration to state that 1-2 terabytes of information are involved.”  The evidence in the case had been amassed from a number of sources and existed in a wide variety of formats, including documents that were OCR’d, scanned and produced in .pdf; electronic documents produced in text searchable files; paper records; the forensic image of a corporate database; and forensic images of computers seized from the relevant corporation (searchable only with special software).  Recognizing the potential difficulties that might arise, the court was tasked with advising on the impact of the discovery on the trial schedule.

In addition to the sheer volume of discovery compiled from many sources (and produced in many formats), several other “problems/issues” were identified that “complicated expeditious pre-trial review of the massive amounts of information” including that defense counsel lacked the resources to conduct a large scale review; that defense counsel was likely to have been “behind the technological knowledge curve when it comes to preparing an electronically based mega-case”; that defendant was the “sum total of the defense ‘corporate knowledge’” and as such needed to be substantially involved in the review of discovery (made more difficult by the need for defendant to acquire permission to travel to participate in that review and his need to return to his home by a set time each day); and the “inability to agree on the precise issues in dispute and the documents needed” a problem described by the court as related to defendant’s intent to present a broad defense “created out of alleged business custom and practice” rather than responding to the indictment allegations “head on.”

via Court Declines to Compel Government to Contribute to Creation of Database to Ease Defendant’s Discovery Burden, Recommends Application for Assistance Pursuant to Criminal Justice Act : Electronic Discovery Law.