The U.S. Department of Justice’s (DOJ) dismissal last week in a Foreign Corrupt Practices Act case in Boston is the latest in a string of bad outcomes for the government due to discovery mishaps. While the government works to revise its discovery policies and seeks resources to collect, review, and analyze the vast amount of electronic evidence attendant to nearly every federal criminal investigation, defense counsel should hold the government to account and formally demand discovery early and often.

Just days before the retrial of a former U.S. Army colonel and a lawyer was set to begin, federal prosecutors sought to dismiss all charges against the men after they discovered seven-year-old text messages indicating they were innocent. The text messages, which pertained to a series of telephone calls placed by the defendants and mistakenly destroyed by the FBI, directly contradicted the government’s theory of the case.

As we highlighted last year in this blog, the Due Process Protections Act amended Federal Rule of Criminal Procedure 5(f) to require federal courts to enter a Brady order at the outset of the case, which, as a practical matter, usually does not much more than to remind the prosecution, court, and defense of the shadow of Brady. In April, we recommended that defense counsel go further in seeking entry of Rule 5(f) orders with specificity. The recent failures by government counsel to produce Brady material underscores the need for defense counsel to proactively obtain such orders, and elicit representations from the government about their compliance.

The conundrum DOJ faces is borne out of a combination of lack of resources and deluge of electronic evidence. Law enforcement investigations often involve multiple law enforcement partners at the federal, state, and local level. Each agency has varying degrees of sophistication with electronic evidence collection, understanding of discovery obligations, and procedures to handle evidence collection. When the prosecution team is that large and diverse, problems arise due to a lack of control, consistency, and communication within the team. A prosecutor’s discovery obligation extends to all “federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.” Justice Manual 9-5001(B). Because the government’s noncompliance with its discovery obligations is typically not a matter of bad faith, the judicial remedy available to defense counsel is usually that of a continuance, which further stretches out the shadow of an indictment, or amounts to a distraction during trial.

Outright dismissals or otherwise generous plea deals do sometimes arise from case outliers when prosecutors fear a judicial inquiry into whether a member of the prosecution team acted in bad faith. This Spring, prosecutors in the Western District of New York entered into lenient plea deals with defendants charged in a $500 million real estate fraud, thereby avoiding an evidentiary hearing into the government’s mishandling of discovery. In January, prosecutors in the District of Massachusetts dismissed charges against a Massachusetts Institute of Technology professor, citing “additional evidence” that made it unprovable at trial.

As we recently explained in this blog, DOJ is considering limiting the amount of evidence it collects to try and ease the burden on prosecutors to collect, review, and disclose evidence. There is a vast amount of electronic evidence available to law enforcement today. While obtaining legal process takes little effort on their part, if the information is not going to be reviewed, it shouldn’t be obtained. But even with this “smart collection” approach, the problem of voluminous and unwieldly electronic evidence will remain. Early on in an investigation, the targets and scope are often unclear. People use multiple cellphones, computers, and email accounts. Agents launch investigations before they coordinate with their local U.S. Attorney’s Office. Limiting legal process alone won’t solve the problem, which is largely driven by the increased volume of electronic data in today’s business world.

In the meantime, the onus is on defense counsel to push early and often for discovery, set deadlines with the court, anticipate what may exist—and ask for it—and assume the prosecutors aren’t fully aware of what’s in their own file. Rule 16.1 (which requires the parties to meet and confer regarding discovery no less than 14 days after arraignment) and Rule 5(f) provide defense counsel with the tools to obtain from the court orders to set forth discovery deadlines and set out how discovery will be produced. Counsel should require the government to confirm to the court the status of those disclosures, and the efforts the government has taken to review and produce discovery. Those early deadlines and on-the-record representations from the prosecution are key to obtaining remedies for late disclosure; otherwise, the court is likely to fall back on the relatively meager remedies available under Rule 16 and related authorities.

When defense counsel learns of late-disclosed or destroyed evidence, it often occurs after significant time and resources have been invested in the case. Counsel can’t afford to be passive recipients of discovery and wait to see what the government drops on their laps. Advocates need to be proactive in shaping the government’s discovery obligations, using the tools available to them.