The January 6 Capitol Insurrection is Creating Major eDiscovery Challenges: eDiscovery Trends

An “onslaught” of data sources is complicating eDiscovery efforts related to the January 6th Capitol insurrection. But despite struggles by the Department of Justice (DOJ), some eDiscovery practitioners say they’re impressed with how the agency is handling the challenge, according to an article from Legaltech® News.

The article (DOJ Faces ‘Biggest Prosecutorial Mashup in Modern Times’ in Capitol Insurrection E-Discovery, written by Frank Ready), states that “the sheer deluge of body cam footage, cell phone video and social media posts that are still being captured is causing delays in the more than 506 cases already being pursued.”

Last month, Politico reported that the Department of Justice (DOJ) agreed to pay $6.1 million to Deloitte Financial Advisory Services to help create a “massive” database that would give defensive attorneys access to relevant electronic evidence from the DOJ’s investigation into the Jan. 6 Capitol insurrection. But in an opinion filed July 16, a U.S. district judge for the District of Columbia ruled evidence that had already been seen by a grand jury could not be placed in the database, further complicating efforts to deliver speedy trials.

Mary Mack, CEO and chief legal technologist at EDRM (which is a Foundational Partner of eDiscovery Today), noted that the DOJ does go after RICO cases, among others, that involve multiple defendants and require interconnected e-discovery productions that are rooted in one central place.

“So yes, they probably should have had something like that [database] ready, like a shell. But I don’t know that anybody anticipated the enormity of this particular investigation. It’s [defendants] from all over the country. They are being arrested in different jurisdictions. Different people are handling the evidence,” she said.

The investigation of the events of January 6 has overturned plenty of digital evidence, from body cam and cell phone footage to posts ripped directly from various social media platforms. Complicating matters further is that evidence obtained from one defendant’s phone, for example, may also have relevance to the cases of any alleged rioters who happen to appear in the background of a selfie or video.

Craig Ball, a trial attorney and an adjunct professor of e-discovery at the University of Texas at Austin School of Law (and also a Foundational Partner of eDiscovery Today), called it “the biggest prosecutorial mashup in modern times.”

He explained, “You have this amorphous amount of people and we have this tremendous amount of real-time documentation. Amateur journalists on the scene who are bloggers, posting to Instagram and so-forth and Tik-Tok videos … [That evidence] is having to be assessed in real time and it has to be in the form of a very sophisticated database.”

Still, Ball noted that he is “really quite impressed” by the results that the DOJ has been able to achieve. “They appear to me to be taking seriously their obligation to provide both inculpatory and exculpatory information,” he said.

With 506 cases (and counting), they had better be.  And, they had better be proficient in using the technology too.  The article, with more observations and comments, is here.

So, what do you think?  How do you think the DOJ is handling eDiscovery for the capital insurrection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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