United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
On July 28, 2014, a grand jury returned an indictment against nine individuals: Roberto Hernandez, Santos Robles, Alexis Reyes, Alphonso Lythcott, Kenyatta Grant, Victor Perez, Wanda Aponte, Jennifer Vasquez, and Peter Napolitano. Each of the nine is charged with participating in a narcotics conspiracy with the others; one, Alexis Reyes, is additionally charged with using, carrying, and possessing a firearm in connection with that conspiracy.
Defense counsel, eight of whom were appointed pursuant to the Criminal Justice Act ("CJA"), have requested that this Court appoint a tenth attorney to act as a Coordinating Discovery Attorney ("CDA") on behalf of all nine defendants. According to defense counsel, this attorney would undertake the following tasks: (1) act as a repository (or "way-station") for the receipt of electronic discovery; (2) possibly index or "tag" such discovery (which requires some review); and (3) determine, in collaboration with defense counsel, "whether additional support services are necessary or whether they can be address[ed]... within the context of [the CDA's] services." (ECF. No. 52.)
The appointment of CDAs is a relatively recent trend. In February of 2012, the Joint Electronic Technology Working Group ("JETWG")-a group comprised of representatives of the Administrative Office of the U.S. Courts' ("AO") Office of Defender Services ("ODS"), the Department of Justice ("DOJ"), Federal Defender Organizations ("FDO"), private attorneys who accept CJA appointments, and liaisons from the U.S. Judiciary and other AO offices-promulgated the "Recommendations for Electronically Stored Information (ESI) Discovery Production in Criminal Cases." These Recommendations, which address best practices for the cost-efficient management of ESI discovery between the Government and defendants in federal criminal cases, include a few limited paragraphs relating to CDAs. For example, the Recommendations state:
In cases involving multiple defendants, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek the appointment of a Coordinating Discovery Attorney and authorize that person to accept, on behalf of all defense counsel, the ESI discovery produced by the government. Generally, the format of production should be the same for all defendants, but the parties should be sensitive to different needs and interests in multiple defendant cases.
Dep't of Justice and Admin. Office of the U.S. Courts Joint Working Grp. on Elec. Tech. in the Criminal Justice Sys., Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases Recommendations 4 (2012), available at http://mow.fd.org/final-esi-protocol.pdf. The Recommendations do not set forth a list of tasks that may be delegated to a CDA. They also do not address any legal or ethical issues that may be implicated with the appointment of CDAs. The Recommendations, of course, do not and could not modify any legal and ethical obligations that a criminal defense attorney owes to his or her client.
Over the past three years, an increasing number of courts have appointed attorneys to perform a variety of substantial discovery tasks as CDAs. See, e.g., United States v. Vujanic, No. 3:09-CR-249-D (17), 2014 WL 3868448, at *2 (N.D. Tex. Aug. 6, 2014) ("[T]he court has granted Vujanic's motion for approval of [CJA] funds so that Ms. Cadeddu can provide the same services as Coordinating Discovery Attorney as she provided to the numerous codefendants.... Vujanic will have the benefit of Ms. Cadeddu's extensive prior experience in this case when attempting to narrow his examination of the discovery that the government has produced." (emphasis added)); United States v. Shafer, No. 3:09-CR-249-D(05), 2011 WL 977891, at *6 (N.D. Tex. Mar. 21, 2011) ("Because of the volume of discovery in this case, the court appointed a coordinating discovery attorney to assist with discovery between the government and the defendants. The discovery attorney has arranged for key discovery provided by the government to be processed into a readable format and provided to defense counsel." (emphasis added)); United States v. Flores, No. CR 12-00119 SI, 2014 WL 1308608, at *1 (N.D. Cal. Mar. 28, 2014) ("A Coordinating Discovery Attorney, appointed by the Court, has assisted defense counsel in electronically organizing the documents received and maintaining a database which will allow for use of the materials at trial."); see also United States v. Ortiz, No. CR 12-0119 SI (LB), 2012 WL 5379512, at *1 (N.D. Cal. Oct. 31, 2012); United States v. Sierra, No. 11Cr.1032(PAE), 2012 WL 2866417, at *2 (S.D.N.Y. July 11, 2012); United States v. Collins, No. 11-CR-00471-DLJ (PSG), 2012 WL 3537814, at *6 (N.D. Cal. Mar. 16, 2012); United States v. Haney, No. 3:09-CR-249-D(03), 2011 WL 976786, at *5 (N.D. Tex. Mar. 21, 2011); United States v. Faulkner, No. 3:09-CR-249-D, 2011 WL 976769, at *2 (N.D. Tex. Mar. 21, 2011). This Court has not found a reported decision or hearing transcript in which a court appointing a CDA has addressed the potential ethical and legal issues implicated by what appear to be rather broad-ranging CDA appointments. The reported cases instead reveal an array of tasks and potential involvement of CDAs in managing electronic discovery. There is no one "CDA" set of responsibilities. There are clear and obvious ethical and legal issues implicated by any court's appointment of an attorney to act on behalf of multiple defendants in a criminal case.
In this case, defense counsel have requested that the Court appoint Emma Greenwood, Esq. to act as a CDA. After receiving the parties' request, the Court held a conference to address legal issues necessarily implicated by the appointment of a CDA in a multiple-defendant case. This Opinion & Order sets forth the Court's determination with respect to that application.
For the reasons set forth herein, the Court DENIES the application.
Fundamental legal principles critical to adequate defense of a criminal charge form a backdrop to the Court's decision. The U.S. Constitution provides that each defendant is presumed innocent until proven guilty. See Coffin v. United States, 156 U.S. 432, 453 (1895) ("The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."). Each criminal defendant enjoys a constitutional right to have effective assistance of counsel in confronting the charges against him. See U.S. Const. amend. VI. The law also provides that each defendant is entitled to the undivided loyalty of his attorney. See Cardoza v. Rock, 731 F.3d 169, 183 (2d Cir. 2014) ("Where a criminal defendant has a Sixth Amendment right to counsel, he also has a correlative right to representation that is free from conflicts of interest."' (quoting Wood v. Georgia, 450 U.S. 261, 271 (1981)) (internal quotation marks omitted)); United States v. Carrigan, 543 F.2d 1053, 1058 (2d Cir. 1976) (Lumbard, J., concurring) ("The right to effective representation by counsel whose loyalty is undivided is so paramount in the proper administration of criminal justice that it must in some cases take precedence over all other considerations, including the expressed preference of the defendants concerned and their attorney.").
Not all defendants in this case, or in any other case, necessarily share the same legal interests. Each has an individual presumption of innocence; each has an individual right to effective assistance of counsel with undivided loyalty. How, why, when, and to what extent each defendant may have participated in events relevant to the crimes charged may differ. Discovery may reveal that a defendant was "only present" at a particular time; or not present at all; or heavily involved; or minimally involved; or was giving orders; or was receiving orders; or withdrew from the conspiracy at a particular point in time. In short, discovery reveals each defendant's story-a story critical to plea bargaining, deciding innocence or guilt, calculating offense levels, and determining the applicability of various enhancements and role adjustments, including adjustments for minor or leadership roles under the Sentencing Guidelines. Discovery in a case often defines much of what is known about the events in question.
The law requires the Government to provide certain discovery to each defendant. It is the increasingly voluminous electronic discovery incident to Title III wiretaps, seized computer hard drives, cellphone data, and the like, which lead us to the present issue. How is defense counsel to handle and manage such voluminous discovery? This issue is particularly acute in cases with multiple defendants where discovery may have increased in volume and complexity with each additional defendant. It is often the case that the greater the number of defendants and/or the longer the investigatory timeframe, the greater the mass of electronic materials. Handling and managing this mass of materials is especially challenging for CJA-appointed counsel, who are provided limited resources and who operate under pressure to keep costs as low as possible. Duplicating truly ministerial tasks makes little sense; achieving appropriate efficiencies is to be applauded.
It would seem, then, that central management of ESI only makes sense. Indeed, there is no doubt that centralization of electronic discovery may be beneficial in appropriate cases, provided that necessary safeguards are in place. This appears to be the origin of the concept of a CDA: a person appointed to assist with centralizing discovery and achieving efficiencies where possible. Important issues arise, however. This Court's attention is keenly focused upon the fact that CDAs are attorneys. The appointment of an attorney in any criminal case should be carefully scrutinized. Everyone would readily agree that attorneys owe a duty of undivided loyalty to each of their clients. How, then, does the appointment of an attorney (CDA) to manage ...