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The Champion

November 2017 , Page 44 

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E-Discovery and Use of Digital Evidence

By Richard D. Willstatter

In many federal criminal cases, the government sends discovery to defense counsel in a digital format. Documents are often delivered to counsel in a portable document format (PDF), audio or video recordings are disclosed, and digital images are produced. The format of the discovery and the timing of its disclosure are topics lawyers should think about from the moment they enter a federal criminal case.

Rule 16 Materials

Rule 16 of the Federal Rules of Criminal Procedure is the primary means by which defense attorneys can force the government to disclose the electronically stored information (ESI) they need. That rule gives a defendant the right to “copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, control or custody and (1) the item is material to preparing the defense; (2) the government intends to use the item in its case-in-ch

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