Discovery in White-Collar Cases – Key Control Documents

Last month, I attended a seminar put on by the Federal Defender Program for the Northern District of Georgia that focused on how to handle large scale discovery in criminal cases. The seminar also provided a good discussion of ways to describe to Judges in quantifiable terms the discovery produced by the government in a case. While there is no one right approach, the seminar reaffirmed for me what we have implemented here at Finch McCranie and I took away some tips to improve upon our process. I appreciate them sharing their ideas on organizing and analyzing large scale discovery in criminal cases.

The quantity of discovery that can be produced in a White-Collar case is now largely talked about in terms of gigabytes and terabytes, thumb drives and hard drives. However, being able to quantify it in terms of number of pages, documents, or bankers’ boxes in addition to the electronic file size may provide a visual image that is helpful to a Judge, if and when a motion to extend pretrial discovery deadlines needs to be filed to allow defense counsel time to review the discovery.

To track and analyze the discovery, there are three key control documents that we create and build upon as we work through each case. The first document is an Overarching Discovery Index. In almost all the Federal White-Collar cases I have worked on, the discovery productions are ongoing, not all at one time, and that is where this index comes in. It summarizes the productions and usually includes the following column headings: Date Produced, Bates-Range (including any bates-prefix or other file name), and Description. A Comments column is also included to note any follow up that is needed. Not only does this document create a snapshot of each production that can be used to quantify the data, but it also creates a road map to track and focus the discovery review.

The second control document is what we refer to as the “Who’s Who”. This document summarizes the different entities and persons involved in the case and will typically include the following column headings: Name, Contact Information, Relationship to Case, and Description of Testimony (or other evidence with a citation to the source). A Comments column is usually included here too. The Who’s Who provides a useful place to track a person’s involvement in the case and can also be a valuable tool to use in client meetings. Additionally, it also serves as a preliminary repository for evidence associated with potential witnesses to be later transitioned to witness folders in the event of a trial.

Finally, the third and typically most lengthy key control document is the Chronology. The Chronology has multiple functions: it tracks the hot documents and other events in the case, it keeps the defense team on the same page, it is another valuable tool to use with the client, and during the lead up to trial focuses the attention on the critical areas. This document typically has the following column headings: Date, Event (with a brief description), Source (citation to evidence), and Comments. Similar to the Who’s Who control document, the Chronology also serves as a repository for potential exhibits to be used in the event of a trial. It is from this document that we create our Trial Exhibit List.

While there may be other indexes of specific bates-ranges, etc. depending on the case, these three documents (Overarching Discovery Index, Who’s Who, and the Chronology) are the key control documents that we develop as we work through the discovery in a Federal White-Collar case. The column headings in each are a sample of what we will usually include but since each case is unique, these are adapted for each case to best analyze the data.