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When the state Supreme Court ordered the attorney general to produce discoverable documents in the Pennsylvania Turnpike Commission corruption cases earlier this month, Chief Justice Ronald D. Castille said that office still needs to review approximately 30 million subpoenaed electronic documents for privilege purposes before turning them over to the defendants.
The Attorney General’s Office declined to comment for this story, but lawyers who spoke with the Law Weekly expressed doubts about whether an agency would be able to review the 12 terabytes of data by the time the turnpike case is set for trial in November.
Private firms can outsource their e-discovery needs or have associates pile on to tackle vast discovery projects, but how public entities handle their e-discovery needs can vary on a county-by-county basis.
According to Richard W. Long, the executive director of the Pennsylvania District Attorneys Association, e-discovery processes vary, but they are starting to gain traction as a standard practice.
Because of the smaller number of documents involved in criminal cases, he said, so far, outside help is rarely required, and he has not heard much concern about skyrocketing costs.
“Relatively speaking, it’s minimal and easily handled by the line prosecutors,” Long said.
According to Gino Benedetti, general counsel for Southeastern Pennsylvania Transportation Authority, the authority utilizes a platform that can search its electronic records using keywords. If litigation arises, bus routes, project names, SEPTA workers and other search terms are then negotiated between parties, and the electronic documents are then narrowed down for review.
Most of the litigation SEPTA faces, like a bus or trolley collision, is handled in-house, but larger cases, such as discrimination or contract disputes, can require the authority to hire an outside firm to handle the case.
“We don’t have a staff of lawyers here that have that expertise right now,” he said.
He said that whether or not the outside firm will need to hire outside vendors to handle the project is a factor in the negotiations, as it increases the cost. However, he said, because few cases need to be outsourced, it is not a big budgetary concern.
According to Leonard Deutchman, general counsel of consulting firm LDiscovery and a columnist for the Law Weekly, e-discovery platforms are typically not used by state agencies, and reviewing large numbers of documents can be very complicated.
Dealing with larger quantities of discovery documents requires files to be gathered and extracted, processed into a review database and uploaded into a review platform so the information can be accessed by many reviewers, Deutchman said. Along with keyword searches, related processes, such as Boolean or proximity searches, could be implemented to try to identify potential responsive materials, which would then need to be further reviewed by attorneys.
Even if an entity has in-house forensic and information technology teams, e-discovery tasks require a different skill set, Deutchman said.
“Forensic analysis is about looking at one or two things very closely,” Deutchman said. “E-discovery is looking across multiple sources far more broadly than is done in forensic analysis, but not as deeply.”
Allegheny County District Attorney’s Office spokesman Michael D. Manko said e-discovery is handled in-house at his office. He said that, whenever possible, the office tries to reduce everything to a digital format to help facilitate discovery, but he declined to give more details about the process.
According to Steven Latzer, chief of staff and deputy district attorney for Montgomery County, prosecutors in Montgomery County began moving to an e-discovery system about seven years ago.
Police in Montgomery County send criminal documents to the detectives unit within the office, which then creates and sends the criminal files to the assigned assistant district attorneys, Latzer said. Discovery clerks help attorneys scan materials, and are trained to determine what files are generally discoverable. However, it is the assistant district attorneys who perform the final check of what documents will eventually be emailed to defense attorneys.
The assistant district attorney’s review “is not just a function of taking out materials that should not be disclosed. It’s also knowing what should be in there,” Latzer said. “In the end, the ADAs have to check. I don’t think the judges would take kindly to put it on the discovery clerks.”
With the larger cases, the process is similar, but, instead of emailing the documents to defense attorneys, discovery clerks copy the final documents to a CD or flash drive, and then deliver it to the defense attorneys.
The system, according to Latzer, was created in-house, and the storage and management of electronic data is also done in-house.
The system has been successful in reducing the number of defense attorneys claiming they never received discovery, and in cutting costs, Latzer said.
“The concerns were understandable at first, but the system has proven to work,” he said. “It’s a much more efficient, more secure and better way of doing it.”
In the spring, the Philadelphia District Attorney’s Office began using a new electronic records management system for cases in misdemeanor court, said Lauren Baraldi, chief of performance and technology at the office.
In the new system, electronic documents are uploaded to a portal set up with the First Judicial District that can be accessed by attorneys on the case. The only attorneys who can access the documents in the portal are those who have entered an appearance with the court, Baraldi said. The system is updated every four hours, and attorneys are notified when new documents are uploaded in their cases.
Baraldi said the portal is a “one-stop shop” for defense attorneys and the defense bar was onboard with the changes.
While the District Attorney’s Office has been able to save some on paper and toner costs, the ongoing costs of licensing and maintenance of the system have overshadowed the savings so far.
“E-discovery is a huge financial burden for government agencies,” Baraldi said.
According to Baraldi, the Philadelphia office used grants to purchase the records management system and to pay for an outside group to set it up. The office has six IT employees servicing 600 employees, Baraldi said.
“We don’t have a huge IT budget,” she said.
Having defense attorneys access the documents themselves, as opposed to having them delivered, has brought an institutional change and some novel arguments regarding access to the portal and difficulties downloading documents, Baraldi said.
“Our position is: Once it’s provided on the portal, it has been provided. If there’s a problem and you can’t access it, you have to call the help line,” she said. “It takes the responsibility, and it puts it more on defense counsel than it has previously.”
The biggest win, Baraldi said, is the transparency the system has brought to discovery.
The Philadelphia District Attorney’s Office has plans to roll out the program in the Philadelphia Court of Common Pleas to handle felony cases.