We, as defense attorneys, are quickly becoming inundated with data. The purpose of this article is to proffer some form of potential solution to the problem created by an increase in material we, presumably, are obligated to personally review.
When I first started practicing as a defense attorney, cell phones were virtually nonexistent in the landscape of information that the prosecutor would have. Don’t get me wrong: They did exist, but not in the form they are today. Previously, all a cell phone was capable of was making and accepting phone calls. There were no cell phones with the ability to text, take or modify photographs, take or modify videos, interface with Facebook/Twitter/Snapchat, etc.—not to mention text messages, emails, and GPS information. In today’s world, police officers routinely seek out affidavits to both acquire the accused’s cell phone and perform searches within it. Luckily, the United States Supreme Court has helped a little in this regard.1 Most surprisingly, our very own Court of Criminal Appeals, shortly prior to the United States Supreme Court, also held that a warrant was required to search the contents of a cell phone.2 The problem now has become that it is commonplace for the police to obtain those warrants only then to obtain the entire contents of the phone.
This is only the tip of the problem. Not only have cell phones changed the landscape; so has the digitization of almost every other type of media. Previously, we had videotapes, audio tapes, and actual photographs. Now we have digital video, digital audio, and digital photographs, and the list keeps increasing depending on what is dreamed up next. The only limit on the number and size of these files seems to be the space available on the storage device. In addition, this digitization process includes all sources the prosecutors seek information from—e.g., hospitals, emergency services, phone providers, and more. We now have, in addition to in-car video (both front facing and client facing), body camera video. We have video from inside the sally ports, video from the book in process, video from the intox room, etc. Lately, jails have taken to recording every phone call made and making those recorded calls available to the prosecutor. Here in Denton, the county jail is also providing video visitation, which is being recorded. This only represents the available information from the prosecution. This is important as, pursuant to the Morton Act3 and Schultz v. Comm’n for Lawyer Discipline, SBOT Case No. D0121247202, December 17, 2015,4 it is incumbent on the prosecution to turn all this information over to the defense attorney.
The problem that all of this digitized evidence creates is two-fold: how to properly store such mass quantities of digital evidence and finding the time to personally review each and every piece provided. I’m not going to deal with the time issue at this point as it seems to me to be a huge gray area. The purpose of this article is to propose that each of us find a way to store these files pursuant to the obligations imposed on us.
Let’s begin with what our collective obligations are in storing our clients’ files. Pursuant to Rule 1.14(a) of the Texas Disciplinary Rules of Professional Conduct, we are to maintain our clients’ files for five years after the representation ends. Of course, that is just a rule of thumb. I presume that the safer course of action would be to maintain each file until five years after the sentence has been completed, whether that sentence results in some form of probation or incarceration. For purposes of this article, I am presuming the above storage time period is being used.
Many lawyers are utilizing cloud storage of some sort. There are various opinions floating around the states indicating that use of such storage is satisfactory, provided proper safeguards are in place. If you wish to utilize such a method, please review the necessary privacy policies, encryption policies, and file ownership policies. Also, you will need to have something in place should your cloud storage provider cease operating. The last thing you want to happen is for your client files/data to be locked away outside your ability to retrieve them and have your client show up wanting a copy of something. Of course, it is incumbent on us to make sure we house those files until the appropriate time period expires.
For those not using cloud storage, I will walk you through my recent efforts to find a way to resolve this storage issue. I have stacks of DVDs from when the local prosecution used to burn copies of the in-car digital video pertaining to my client. That’s not the medium to transfer discovery any longer. As a result of the increase in digital information, the local prosecution is now requesting flash drives rather than DVDs, which are limited to approximately 4.7 GB—unless, of course, they are double layer. I recently delivered a 2-terabyte portable hard drive for purposes of copying the requested data. As this started increasing, I went online and purchased numerous flash drives in multiple sizes. Once I did so, the thought that was the genesis of this article hit me: “Where can I keep all of this data?” Keeping up with something as small as a flash drive is problematic. I have devised a way to physically store them within each file, but that won’t solve two problems: physical file destruction and technology advancements.
I have been scanning and digitizing the contents of my physical files for years. Upon the resolution of a client’s case, I gather all the digital information and place it in an archive. My digital files are an exact duplicate of the physical ones. I maintain physical files during the active portion of the client’s case in order to have the information readily accessible.5 Once the case is concluded—not immediately, but on a routine basis—I have my staff purge the physical files. This is, of course, after the archive process has taken place. Should a client come and request something from their file, it is a simple matter to print it for them.
Due to the increase in data, my archive files began to overwhelm my backup system.6 After hitting that new issue, I was forced to find a separate solution for these enormous files—one that would accommodate the file retention requirements. Archiving PDF files, unless something absolutely huge is present, is a relatively minor issue, and that has become the predominant file type and size in the client’s file itself. Those continue to migrate to my regular archiving and backup systems, as do the photographs and other smaller files. When it comes to the video files or larger data driven files, those are now housed on my NAS (Network Attached Storage). That has become my solution to the storage problem. I created a networked desktop running an operating system dedicated to such a solution. There are presently four 4 TB drives in a RAID (redundant array of independent disks) configuration available for housing all of this data. I haven’t looked lately, but I believe, due to the RAID configuration, there is approximately 13 TB realistically available. I chose the RAID configuration in order to ensure that the data was properly protected from hardware failures. Now, when I receive these large data files, I go through a process that uploads those files to my storage unit, and I also copy them to a portable hard drive for day-to-day use. The NAS is truly there to ensure that I will have access to the files no matter what. By use of this system, in addition to the archiving process set forth above, I have found that I can readily reproduce a client’s file in its entirety upon request.
The other issue, technology advancement, is something that each of us need to keep in mind. By example, not too long ago I happened to have a matter in—at that time—the very new Tarrant County civil courthouse. The courtrooms are equipped with all manner of digital devices and interfaces. As I was waiting, I was chatting with the bailiff about the system and its use. I jokingly said that technology would quickly cause them problems, and he informed me that as new as that building was, it already had. Apparently, Apple, in redesigning the iPad with a different port, had already caused an interface problem. I’m not sure that any of us can completely stop this type of situation from happening. Cassette tapes, 8 tracks, and videotapes, if they exist in a case, will be hard to access at this point as there are few if any machines available to play them. The same, eventually, will be true of DVDs, CDs, and flash drives.
Storing your files in the cloud may insulate you, to some degree, from this issue. That will depend upon how future-proof your cloud access presently is. As I don’t utilize, in a third-party way, those services, my need for preservation of access to the files themselves had to be considered. I recently had a hard drive fail. If you keep them in operation long enough, each of you will have this problem. I use systems that aren’t necessarily mainstream, so I had to pick some manner that would withstand some of these changes. Local Area Networks (LANs) have been around for quite some time. The advances in the way they operate (not the wireless type) are not as rapid and earth-changing as other hardware. Since I view the hardware as relatively stable, the choice to utilize it in ensuring file access was easy. Essentially, my systems can all speak to that storage device, and I utilize long-running applications7 to both upload and download files.
Each of you will need to formulate your policies with regard to the manner in which you comply with the rules. This was so much easier when the most we had was a videotape from a stop or pictures from an assault. Now, even the simplest of misdemeanor prosecutions provides an exponential increase in the digital size of our files. As an example, I have a simple burglary of a vehicle case where there are two audio interviews, five video interviews, eight homeowner security videos, and eleven photographs provided. That is just the digital portion. I also have 25 PDF files from the prosecutor’s office. The property alleged to have been taken from the vehicle is a small flashlight and a knife.
I also have a Class B possession of marijuana charge that I was provided four very large video files: two body cam videos (one from the patrol officer and one from the bicycle officer) and two in-car videos. While the volume of information seems disproportionate to the charge itself, this is a regular occurrence. This is the very reason I believe each of us needs to consider our obligations and the methods we use to comply. This problem will likely never get smaller or stagnate, and we, as defense attorneys, need to prepare for this rapid increase in digitization of our files. I hope this helps you in your future efforts to keep your files in order.
1. Riley v. California, 573 U.S. ___, 134 S.Ct. 2473 (2014).
2. State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014)
3. Tex. Code Crim. Proc. Ann. art. 39.14.
4. http://www.txboda.org/sites/default/files/Schultz55649 Opinion.pdf.
5. Yes, I am aware of services such as Dropbox, that would allow me electronic access, but I am simply not as comfortable with that as I am with actual paper documents. I am sure that many of you are utilizing those products. I am just an old dog.
6. I regularly back up both active and archived files to a portable encrypted hard drive and take those off site as most IT professionals recommend.
7. File Transfer Protocol (FTP) is what I use most easily but the reality is that I could just drag and drop as with most present day operating systems.