Recently I was a speaker at the 27th Annual National Institute on White Collar Crime’s “E-Discovery in Government Investigations and Criminal Litigation” panel. Our panel discussed a number of important and cutting edge issues relating to challenges faced by white collar litigants in dealing with ESI, including the preservation and production of ESI, developments in the law of search and seizure of digital devices, and other constitutional and post-indictment challenges.

I was joined on the panel by Roy Altman, Assistant U.S. Attorney for the Southern District of Florida, the Honorable Craig Shaffer, U.S. Magistrate Judge for the District of Colorado, Lisa Ghannoum with Baker & Hostetler, and Erin Nealy Cox, Executive Managing Director for Stroz Friedberg. We discussed the importance of having a meaningful “meet and confer” with the government pre-indictment relating to subpoena requests – grand jury or otherwise – from the government and the risks associated with failing to preserve information in a government investigation. We also discussed the criminal ESI protocol, its relative small impact in white collar matters, and ethical issues relating to the collection and use of social media in government investigations.

The most spirited discussion related to the constitutional issues relating to ESI; specifically, digital evidence search warrants and warrantless searches of smart phones incident to a lawful arrest. We debated the challenges faced by courts and practitioners in reconciling the 4th Amendment with rapidly developing technologies and discussed concerns about whether individuals participating in a digitally advanced society need to surrender, or have implicitly surrendered, their privacy for certain purposes. AUSA Roy Altman also described a pilot program he is working on in the Southern District of Florida regarding the production of post-indictment discovery in electronic format.

At the end of the well-attended panel, we answered a number of audience questions relating to Brady implications in large and complex ESI cases, other post-indictment issues, and strategies for white collar practitioners when dealing with large volumes of ESI.