The respective federal civil and criminal rules regarding the formatting and organization of discovery materials for one’s adversary are so disparate that they appear to straddle different centuries of technological development. Civil Rules 26 and 34, and the case law which has construed them, are firmly of the 21st century, and have generated expectations among litigants and judges regarding the manner in which discovery will be produced electronically, according to certain formats and commensurate with search software and evidence organization programs. Criminal Rule 16 harkens, by contrast, to the early Industrial Revolution, encouraging the government to produce rooms, or even warehouses, full of paper documents to be examined in challenging physical environments of heat, cold, or excessive moisture; even as to electronic criminal discovery, requests for particular formatting or search capability often generate bemusement instead of cooperation.

According to a recent Sixth Circuit opinion (see previous posts here and here), nothing will soon change in regard to how courts view the government’s obligations under Rule 16 . United States v. Warshak, et als., 2010 WL 5071766 (6th Cir., 12/14/2010). Rule 16 requires that the government permit a defendant to inspect and copy any documents or data which it possesses or controls and which is material to the defense, is intended to be used as evidence in the case-in-chief, or which was obtained from or belongs to the defendant. In Warshak, the government turned over the electronic equivalent of 17 million pages of discovery, mostly seized from the defendant’s company computers, an additional 500,000 pages of hard-copy documents seized at the company, and nearly 300 CD’s worth of other evidentiary materials obtained from other sources. Warshak complained that the district court failed to order the government under Rule 16 to organize its electronic discovery and make it searchable.

The court of appeals noted that Warshak’s objections were not very well taken, since the record below indicated that the defendant and his expert witness had seemingly been able to locate pertinent materials within the government discovery. Moreover, the government had provided the defense with “something of a guide” to the electronic discovery in the form of a room-by-room inventory of items seized from the company; there was no mention of any kind of a guide provided to make sense of the 300 disks filled with materials located elsewhere than at the company. In any event, a civil litigator would shudder at the idea that a physical inventory of the places and computers searched would even approximate “something of a guide” to the resulting electronic data.

More to the point, perhaps, the Sixth Circuit noted that Rule 16 is entirely silent on the form in which the government must produce discovery, and does not require the organization or indexing of that discovery. In light of the “scant” authority cited by the defendant for requiring any more from the government (referring to a single, distinguishable district court opinion) and the “pronounced dearth of precedent” compelling the result sought by the defendant, the trial court’s refusal to accede to the request was affirmed.