Los Angeles, California
Renowned criminal defense attorney, Sean Erenstoft appeared for the first in a series of criminal litigation strategy forums designed to educate civil rights 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 address written requests for discovery, Segall tasked investigators to investigate the attorney who sought merely to obtain information for his client’s benefit.
“While the Federal Rules of Civil Procedure (2006) went a long way in recognizing the complications presented by electronic evidence, criminal defense attorneys and the prosecutors that indict and 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 preserve critical evidence and ignore written requests by a defense attorney to obtain it, can be far more destructive in criminal cases.
“Often-times, a prosecutor can serve a subpoena to trigger an obligation to help avoid the spoliation of evidence” Erenstoft cited.“However, they rarely do so to ensure secrecy and to, unfortunately, save a buck.” Erenstoft recommends tasking investigators to seek search warrants to help preserve the Fourth Amendment; maintain secrecy; and otherwise comply with the duty to thoughtfully (and completely) investigate crime. Once the duty to preserve evidence arises, Erenstoft explained, those in possession of hard-drives and other ESI must take prompt action to maintain the data.
Erenstoft chose to communicate with the Los Angeles District Attorney in the matter he handled on behalf of an accused cyber-stalker. The criminal litigation setting posed special challenges to Erenstoft’s client who could not seek ESI data without alerting the custodians who might otherwise serve as government witnesses. It is not uncommon for defense attorneys to confer with the prosecution to effect the sort of preservation needed to ensure due process. For Erenstoft’s client, a balance was struck between the need to proceed to gather exculpatory evidence versus the need to build a defense in secret.
“My experience with Deputy District Attorney, Wendy Segall was unfortunate on both efforts. 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 DA relied on “screenshots” to prove her case.“My challenges to the ‘screenshots’ fell on deaf ears” Erenstoft explained.“It seemed to me that Segall was less interested in getting to the facts of the case than she was saving a buck on investigating the gravamen of the accusation.”
Erenstoft ultimately served a subpoena-duces-tecum to obtain the ESI which resulted in stalled plea-bargain efforts due to the apparent slight Erenstoft had delivered on Segall. Indeed, Segall retaliated against Erenstoft by tasking an investigator to investigate Erenstoft rather than take up the challenge of proving her case.
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 avid reference to the FRCP.” Erenstoft added,“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 noted the myriad of problems that exist with the mishandling of ESI such as its destruction and the possibility of obstruction-of-justice pitfalls.