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  • Sarah Wilson

E-Discovery Disadvantages the Defense in Criminal Cases

Updated: Oct 19, 2023

Every minute of every day Americans use about 3,138,420 gigabytes of internet data. This massive surge of data use has spiked the amount of information you can learn about a person from a simple internet search. Not only can you learn someone’s favorite book or movie, but also you can locate them and see where they frequently go. This information can be used to commit crimes or to gather evidence to use against someone who is charged with a crime. Attorneys have reported seen an increase of around fifty percent in the use of electronic discovery, specifically social media and cellphone evidence.

Utilizing online profiles to help gather evidence and catch criminals is a beneficial tool often used in homicide cases. Social media such as Facebook, Twitter, and Instagram can tell a convincing story to aid the prosecution in convicting individuals. Facebook is willing to comply with the prosecution’s request for people’s private information, but the same cannot be said for the defense. For criminal cases, Facebook only provides information for law enforcement agencies on how to obtain account user information on their website. Social media giants do not appear willing to aid defense counsel in their investigations, and currently there is no law requiring them to cooperate.

The Stored Communications Act is a federal act in place to protect individual’s privacy in thei

r online communications. Specifically, the Act prohibits an “entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.”. In D.C., and other states across the U.S., it has been argued that the Act infringes on the constitutional rights of defendants; however, courts have continuously sided with the social media companies citing the Stored Communications Act. The Stored Communications Act has limited the ability of the defense to build the best case possible for their clients because social media giants like Facebook deny their subpoenas. The prosecution also is not willing to aid the defense in this area because strategically the prosecution does not need to help the defense build their case.

Another issue associated with electronic discovery and electronic information is the amount of information being produced to the defense. As a strategy, prosecution will produce mass amounts of information to swarm the defense and prevent them from developing their strongest case. This “data dumping” is hard to regulate because each side is required to comply with discovery requests, but it is hard to prove intentionally over-producing to the other side. Additionally, judges do not like to deal with discovery disputes and believe the parties should be able to work it out together. However, if the defense is able to prove intentional over production, the court can issue sanctions.

Electronic discovery is a useful tool to aid in building a case for either side, however the ability of the defense to get ahold of this information is very limited. Something needs to change to allow the defense the same opportunity to build their strongest case.


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