United States v. Hernandez, Court Declines to Appoint a Coordinating Discovery Attorney Due to Ethical Concerns and Finds Use of Vendor to be Preferable
NY district court denied a motion by nine criminal defense attorneys appointed pursuant to the Criminal Justice Act (“CJA”) for the appointment of a Coordinating Discovery Attorney (“CDA”) to act on behalf of nine defendants, finding that “the use of an attorney to centrally manage discovery only serves to raise serious concerns.” The court indicated that contracting with a vendor whose technical capabilities are known and can be relied upon is preferable. If however, a CDA is used, the court held that the parties should enter into a stipulation or other legally binding document clearly defining the responsibilities of the CDA.
This case involves nine criminal defendants charged with participating in a narcotics conspiracy with each other. The eight CJA defense counsel collectively requested that the court appoint a tenth attorney to act as a CDA on behalf of all nine defendants. The defense counsel indicated that the CDA would “(1) act as a repository (or ‘way station’ for the receipt of electronic discovery); (2) possibly index or “tag” such discovery (which requires some review) and (3) determine, in collaboration with defense counsel, ‘whether additional support services were necessary or whether they can be addresss(ed)…within the content of the (CDA’s) services.’”
In February of 2012, the Joint Electronic Technology Working Group created the “Recommendations for Electronically Stored Information (ESI) Discovery Production in Criminal Cases.” Addressing best practices for the cost-efficient management of ESI discovery between the Government and defendants in federal criminal cases, the Recommendations suggest the appointment of one or more counsel to act as the discovery coordinator on behalf of all defendants in a multiple defendant case. The Recommendations did not include a list of the tasks that can be delegated to a CDA or take up the ethical issues that could be encountered with the appointment of CDAs. Noting the trend toward the appointment of CDAs, the court found that none of the courts had addressed either the legal and ethical issues presented by CDA or specified the specific responsibilities of a CDA. Troubled by the “clear and obvious” ethical and legal issues presented by any court’s appointment of one attorney to act on behalf of multiple defendants, the court addressed these concerns in its opinion.
In its reasoning, the court noted that under the U.S. Constitution, each defendant is presumed innocent until proven guilty and is entitled to the “undivided loyalty” of his attorney. The court acknowledged that handling and managing the increasingly massive amounts of electronic materials is a challenge to CJA appointed counsel and the central management of ESI might sense provided safeguards are in place. However, the court was “keenly” focused on the fact that CDAs are attorneys and had trouble “squaring” an attorney’s duty of undivided loyalty to his or her client and the management of discovery for multiple defendants.
The court found “CDA” to be a misleading and confusing title, questioning whether or not a CDA was ever expected to act as an attorney and if they were, on whose behalf? The court reasoned that if the CDA acts as a lawyer and represents the defendants legal interests in any way, then the attorney has the same responsibility to all the defendants and cannot be appointed by the Court absent a Curcio hearing. If the CDA would not be acting as an attorney, then the court wondered why an attorney should be appointed to that positon in the first place. The court noted that in this case, the attorney selected for the appointment was a very skilled lawyer, which highlighted the court’s concerns that she was sought for the position based upon her legal abilities. The court found that a using a vendor would make more sense and be less confusing.
The court addressed a number of concerns it had with the use of attorneys to coordinate discovery and questioned who would have ultimate responsibility when an error in the discovery process occurs, the CDA or the attorney-of-record. The court views the use of technology vendors as preferable as unlike a law firm’s unknown technical skills, their “technical capabilities are readily known and can be relied upon.” The parties can enter into a contract with the vendor so that roles and responsibilities are defined and an individual agency relationship established. Most importantly noted the court, is that a vendor cannot be confused with a lawyer and there is no risk of a “later made ineffective assistance of counsel” claim.
The court found that there may be a role for CDAs in a high-ESI case with safeguards and an appropriate hearing. The court further held that if a CDA is not acting as an attorney, the relationship must be clearly defined and explained to each defendant and a stipulation or other legally binding document should be entered into which clearly defines at least the following:
1. Defense counsel are fully responsible for ensuring that all discovery produced by the Government is in fact received.
2. Defense counsel are fully responsible for ensuring that all discovery is loaded onto a server or otherwise made accessible.
3. Defense counsel are fully responsible for ensuring that all discovery is received in a form useful to their clients.
4. Defense counsel are fully responsible for any tagging or indexing.
5. Defense counsel are fully responsible for reviewing and searching all discovery materials.
6. Defense counsel are fully responsible for any failure in their clients’ discovery processes.
7. The CDA will not assume any responsibilities of an attorney in her role as a CDA.
8. The CDA will not negotiate any discovery issue with the Government.
9. None of the CDA’s communications will be covered by the attorney-client privilege.
In conclusion, the court noted the importance for defense counsel not to “lose the thread” of how to handle and manage electronic discovery. The court highlighted that a benefit of managing your own discovery is that the management of large ESI cases will not become an “unduly” specialized task. The court raised the concern that the use of CDA doesn’t prompt defense counsel to argue that technology has “gotten away from them” which would be against the interests of criminal defendants.
United States v. Hernandez, No. 14 Cr. 499(KBF), 2014 WL 4510266 (S.D.N.Y. Sept. 12, 2014)