What You Don't Know Can Hurt You: Government E-discovery in Criminal Investigations

Unlike the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure have not yet been revised to address the demands of electronic discovery in criminal investigations. Moreover, the government has learned that the most compelling evidence can often be found in e-mails that reside on backup tapes or deleted documents that have not yet been overwritten. As a result, the government frequently insists on full electronic production, and companies can, and often do, spend millions of dollars complying with government subpoenas. While it remains to be seen whether the amendments to the Federal Rules of Civil Procedure will have an influence on federal judges’ willingness to curb the scope of government requests for electronic evidence, the current standard is that arguments of burdensomeness and overbreadth are unlikely to be successful.

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