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Electronically Stored Information (ESI) in Criminal Actions Meets the Fourth, Fifth and Sixth Amendments



Tuesday, August 21, 2012
Product Code - LGN45
Speaker(s): Hon. Thomas I. Vanaskie, United States Court of Appeals for the Third Circuit; Moderator Ronald J. Hedges, Ronald J. Hedges LLC and Corodemus & Corodemus; Sean Broderick, Administrative Office of U.S. Courts; Andrew Goldsmith, United States Department of Justice; Douglass Mitchell, Boies, Schiller & Flexner LLP; Justin P. Murphy, Crowell & Moring LLP
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Please use promo code LGNEXT to register for this program at no cost.

Case law, at both the federal and state levels, that addresses electronically stored information (ESI) is exploding as law enforcement and the public at large (including those accused of committing crimes) exponentially expand their use of electronic devices. At the same time, courts look to the Bill of Rights, an 18th Century creation, to address what ESI-related law enforcement techniques are consistent with our constitutional rights.

This program is intended to explore the collision between the Bill of Rights and the technologies available to law enforcement and accused defendants in the 21st Century. Learn from a faculty of jurists, prosecutors, and defense counsel as we explore an exciting—and rapidly developing—area of criminal law.

Educational Objectives:

• Learn the constitutional limits on government use of advanced technologies to investigate criminal behavior.
• Find out what defenses are available when the government attempts to make use of the fruits of its investigations at the pretrial or trial stages.
• Learn how ESI should be managed by both the prosecution and the defense at trial.
• Discover what an attorney must know about ESI to be competent.

Who would benefit most from attending this program?

This program is intended for any attorney who prosecutes or defends criminal actions in which ESI is an issue, whether the attorney is the prosecutor, retained counsel, public defender, or court-appointed defense counsel.

Program Level: Intermediate

Hon. Thomas I. Vanaskie, United States Court of Appeals for the Third Circuit; Moderator Ronald J. Hedges, Ronald J. Hedges LLC and Corodemus & Corodemus; Sean Broderick, Administrative Office of U.S. Courts; Andrew Goldsmith, United States Department of Justice; Douglass Mitchell, Boies, Schiller & Flexner LLP; Justin P. Murphy, Crowell & Moring LLP

Hon. Thomas I. Vanaskie, United States Court of Appeals for the Third Circuit
Thomas I. Vanaskie is a United States circuit judge on the United States Court of Appeals for the Third Circuit. He formerly served as a United States district judge on the United States District Court for the Middle District of Pennsylvania.

Judge Vanaskie earned a B.A. from Lycoming College and a J.D. from Dickinson School of Law. He was a law clerk for United States District Judge William Joseph Nealon Jr. on the United States District Court for the Middle District of Pennsylvania and then worked in private legal practice in Scranton, Pennsylvania. In 1993, President Clinton nominated Vanaskie to a seat on the United States District Court for the Middle District of Pennsylvania, to which he was confirmed by the United States Senate. Vanaskie served as chief judge from 1999-2006. In 2009, President Obama nominated Vanaskie to his present seat on the United States Court of Appeals for the Third Circuit.

Ronald J. Hedges, Ronald J. Hedges LLC and Corodemus & Corodemus
Ron Hedges is a special master, arbitrator, and mediator working with e-discovery and privilege issues. He served as a United States Magistrate Judge in the District of New Jersey from 1986 to 2007. He is a member of The Sedona Conference® Advisory Board and a member of the Advisory Board of the Advanced E-Discovery Institute of Georgetown University Law Center, where he teaches e-discovery and e-evidence. He also teaches at Rutgers School of Law—Newark. Mr. Hedges is author of, among other publications, Discovery of Electronically Stored Information: Surveying the Legal Landscape (BNA: 2007) and a co-author of Managing Discovery of Electronic Information: A Pocket Guide for Judges (Federal Judicial Center: 2007). He serves on the Advisory Board for The Sedona Conference®.

Sean Broderick, Administrative Office of U.S. Courts
Sean Broderick is the National Litigation Support Administrator for the Office of Defender Services, Administrative Office of U.S. Courts. He provides guidance and recommendations to federal courts, federal defender offices, and Criminal Justice Act (CJA) court-appointed attorneys on electronic discovery and complex cases, particularly in the areas of evidence organization, document management and trial presentation.

Mr. Broderick is the co-chair of the Joint Working Group on Electronic Technology in the Criminal Justice System (JETWG), a joint Department of Justice and Administrative Office of the U.S. Courts national working group which addresses best practices for the efficient and cost-effective management of post-indictment ESI discovery in federal criminal cases. He is a member of the American Bar Association’s Criminal Justice Section Task Force on ESI in Criminal Investigations and Prosecutions and the Sedona Conference® Working Group on Best Practices for Electronic Document Retention & Production.

Before his current position, Mr. Broderick worked as an investigator, mitigation specialist, and paralegal on numerous complex cases for the Federal Public Defender Office for the Northern District of California and various CJA-appointed cases throughout the U.S. In these different capacities, he dealt with a wide range of criminal and civil cases, including multi-defendant, white collar fraud, federal trial, capital trial, and habeas corpus death penalty cases. In addition to his hands-on work, Mr. Broderick has spent considerable time training legal professionals in electronic discovery management, investigations and litigation support, both in the United States and abroad.

Andrew Goldsmith, United States Department of Justice
Mr. Goldsmith was appointed by the Deputy Attorney General in January 2010 as the Department’s first National Criminal Discovery Coordinator. In this role, he oversees a wide range of national initiatives designed to provide federal prosecutors with training and resources relating to criminal discovery, including a Handbook on Criminal Discovery and Case Management, training for prosecutors and law enforcement agents, and review of criminal discovery policies nationwide. He is also the primary liaison to all United States Attorneys’ Offices and Department components on these and other discovery-related matters, including electronic discovery issues in criminal cases.

Most recently, Mr. Goldsmith served as the First Assistant Chief of the Justice Department’s Environmental Crimes Section, where his responsibilities included supervising many of the nation’s most complex environmental prosecutions. In 2005-06, he successfully prosecuted the Atlantic States case in New Jersey, an eight-month trial that is the longest environmental crimes-related prosecution in United States history. For his efforts in this case, Mr. Goldsmith received the Attorney General’s John Marshall Award, having received the Attorney General’s Award for Distinguished Service the prior year. As part of his responsibilities, Mr. Goldsmith has developed and presented training on worker endangerment, environmental terrorism, and laboratory fraud.

Douglass Mitchell, Boies, Schiller & Flexner LLP
Douglass A. Mitchell is a partner with the law firm of Boies, Schiller & Flexner. In 1995, the Federal District Court Judges in Nevada appointed him to be a mentor in the district’s criminal defense training program. In his capacity as a mentor, Mr. Mitchell trains and prepares defense attorneys to practice criminal law in the United States District Court for the District of Nevada. He has served as Chairman of the Attorney Advisory Committee on Implementation of CM/ECF electronic case filing system for the Federal District Court for the District of Nevada. He has also been a member of the Local Working Group on Electronic Technology in the Criminal Justice System for the Federal District Court for the District of Nevada and a member of the Administrative Office of the United States Courts Office of Defender Services Ad Hoc Expert Panel on Litigation Support in Criminal Justice Act Cases. Currently, Mr. Mitchell is a member of the Joint Electronic Technology Working Group, a joint Department of Justice and Administrative Office of the U.S. Courts national working group formed to develop best practices for the efficient and cost-effective management of post-indictment ESI discovery in federal criminal cases.

Justin P. Murphy, Crowell & Moring LLP
Justin P. Murphy is a counsel at Crowell & Moring's Washington, D.C. office, where he practices in the White Collar & Regulatory Enforcement Group and E-Discovery and Information Management Group. Mr. Murphy's practice focuses on SEC enforcement, white collar criminal matters, e-discovery matters relating to internal and government investigations, and related civil litigation. He has represented and counseled corporate and individual clients in all phases of securities, white collar criminal and civil investigations and proceedings involving the SEC, FINRA, Department of Justice, Immigration and Customs Enforcement, CFTC and other agencies.

Mr. Murphy also advises clients on e-discovery issues. His practice includes litigation readiness planning, legal holds and electronic discovery processes. He routinely counsels clients on electronic discovery issues in the context of internal and government investigations, including the use of computer forensics as an investigative tool, and has extensive experience in negotiating with government investigators concerning the preservation, processing and production of electronically stored information (ESI). Mr. Murphy also has extensive experience advising clients on the Federal Rules of Civil Procedure related to electronically stored information (ESI), records and information management, technology issues, cost considerations and related ethical issues.