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| 1 minute read

Criminal discovery: blessing & curse

The volume of evidence being produced by the government in the Sam Bankman-Fried case is indeed impressive but not necessarily that unusual.  Federal prosecutors in complex white collar cases routinely make terabytes of material available to defense counsel every day.   Department of Justice lawyers complain about the resulting technical and logistical burden,  but DOJ has only itself to blame.  FBI agents and Assistant US Attorneys seemingly cannot resist the temptation to seize any and every electronic device from all potential participants involved in an investigation.  While an AUSA may occasionally find a useful needle in the haystack, more often than not they are creating serious problems for the government as they simultaneously struggle to comply with their federal disclosure obligations regarding exculpatory information for example.  To deal with this issue, some DOJ components have adopted an open file approach to discovery.  From the defense perspective, more is usually better than less, but massive document dumps also create issues of constitutional magnitude especially where defense counsel lacks an unlimited budget to competently review all of that information. In the next few years the plethora of electronic evidence may require some tweaks to the Federal Rules of Criminal Procedure relating to discovery.  

With the trial set for October, prosecutors have gathered evidence ranging from phones and laptops to the contents of Mr. Bankman-Fried’s Google accounts, which amounted to 2.5 million pages alone. At a hearing in March, Nicolas Roos, a federal prosecutor investigating FTX, said the government had obtained a laptop crammed with so much information that the F.B.I.’s technicians were struggling to decipher all of it. “It is a massive amount to sift through, and sometimes you can find incredibly useful information,” said Moira Penza, a former federal prosecutor who’s now in private practice. “It is a real challenge.”


doj, white collar defense, ediscovery, e-discovery