Cyber-crimes are on the rise. Renowned criminal defense attorney, Sean Erenstoft, appeared for the first in a series of criminal litigation strategy forums designed to educate other attorneys about prosecutor mis-management in the handling of cases involving electronically stored information (ESI).
Erenstoft cited examples from his own practice pushing back against Los Angeles prosecutor, Wendy Segall who ignored defense calls for electronic discovery in connection with allegations against his client for cyber-stalking. Instead of addressing written requests for internet protocol (IP) data used to link a defendant to a computer, Segall tasked investigators to investigate Erenstoft’s “aggressive” litigation strategy of requiring the prosecutor to simply prove-up her case.
While the Federal Rules of Civil Procedure are beginning to recognize the complications presented by electronic evidence, criminal defense attorneys and the prosecutors who complain against cyber-crimes are a decade behind and have no formal procedural guide for ensuring due process for the accused. Indeed, the consequences of Wendy Segall’s willful refusal to tender (much-less preserve) critical electronic source evidence despite specific written requests by Erenstoft to obtain it, proved to deny his client due process. The problem is that prosecutors typically have exclusive access to computer data and evidence gathered by police; and the un-checked ability to hide such evidence. (A discussion about the problems with absolute prosecutorial immunity to follow).
Often-times, a prosecutor can serve a subpoena to trigger an obligation to help avoid the spoliation of evidence. However, they rarely do so to ensure secrecy and to, unfortunately, save a buck. Once ESI evidence is invoked, prosecutors have a duty to preserve evidence. This involves serving subpoenas and warrants as required to ensure a clean chain-of-custody and to prevent spoilation. Those in possession of hard-drives and other ESI should be placed on notice and take prompt action to maintain such data.
As cyber-crimes are now proving to be a major threat, prosecutors need to formulate ESI preservation techniques. Currently, prosecutors are either reluctant to expend the resources required to do so or they remain overly confident that judges will bypass “hearsay” and “best evidence” objections by astute defense attorneys. “My experience with Deputy District Attorney, Wendy Segall was unfortunate in both regards. Not only did she ignore my written discovery requests; but she ignored my efforts to meet-and-confer about the significant challenges that exist in proving cyber-stalking cases without source data.” Instead, the deputy relied on “screenshots” to prove her case. “My objections to the ‘screenshots’ fell on deaf ears as the judge was simply unaware of the existence of attendant IP data otherwise available to authenticate those documents.” Erenstoft explained.“It seemed to me that Segall was less interested in getting to the facts of the case and simply wanted to extort a conviction.”
To obtain the evidence Segall was unwilling to provide, Erenstoft ultimately filed a lawful civil suit against the victim/witness and used civil procedures to exact the ESI discovery. The efforts proved successful and Segall eventually dismissed charges against Erenstoft’s client days after he served the D.A. with exculpatory ESI evidence he obtained. Later. . . Segall retaliated against Erenstoft by asking a fellow prosecutor to investigate Erenstoft’s filing of the civil suit against her witness. Charges of witness intimidation were later dismissed by Los Angeles judge, Stephen Marcus who stated that “Erenstoft was doing his job until you folks took issue” — referencing the District Attorney’s office.
As a reference, Sean Erenstoft cited to the Federal Rules of Civil Procedure – notably Rule 26(f) which calls upon counsel to meet and confer to address and avoid ESI problems. In fact, many of the problems that a criminal attorney can encounter with ESI can be avoided by reference to the FRCP. Reference to the FRCP is needed at least until California’s Penal Code is amended to include references to the rights of the accused in acquiring ESI. Erenstoft cautioned the attorneys in attendance about the myriad of problems that exist with the mishandling of ESI such as its destruction and the possibility of obstruction-of-justice pitfalls. Erenstoft concludes that it is always best for defense attorneys to place their discovery requests in writing so as to ensure a clean record and to rely upon in making later motions.
Sean Erenstoft can be reached at (310) 613-8887.