Takeaway: The substantive amendments to Rule 16 address many of the criticisms of the prior rule, making it a more effective discovery device.This December, a significant Amendment to Rule 16 of the Federal Rules of Criminal Procedure goes into effect that enlarges the expert disclosure obligations of both the Government and Defense where invoked. This Amendment accomplishes a significant overhaul of the existing expert disclosure rule and goes a long way to bring the criminal rule more in line with its civil counter-part, clarifying exactly what needs to be disclosed, emphasizing that such disclosure be made within a reasonable time-frame, and requiring that the proffered expert sign the disclosure.Defense attorneys have long complained that the existing rule allowed the government to flout their expert discovery obligations by providing last-minute, over-broad summaries of testimony the government expected its experts to provide based on testimony given in other cases, often when the expert has not even reviewed the case at bar. By requiring the proffered expert to sign the disclosure, the Amended Rule forces the government to provide substantive notice of an expert’s anticipated testimony from an expert who is n

ment needs (and should get) the property. The judge then issues a search and seizure warrant from the application. Note that unless the judge authorizes delayed notice, a copy of the warrant and a receipt for the property taken must be given to the person or left at the premises. Law enforcement then conducts the authorized search and seizes the property per the warrant and are required to provide the court with an inventory of what was seized.F.R. Crim. P. Rule 41 then establishes a two-step process when ESI is involved. The first step is the seizure and then a subsequent review of the ESI which must be consistent with the warrant. There is no time frame established for this review since it may take a substantial amount of time, especially with encrypted drives. The government provides the defense with an inventory return form, which describes the physical storage media seized or copied. Anything not on the inventory can be challenged if it is introduced in evidence. Additionally, F. R. Crim. P. Rule 16 allows the defense to discover any ESI that the government has in its possession that is material to its case or that the government intends to use at trial. Regarding third parties, the court may issue a subpoena under F. R. Crim. P. Rule 17 for a third party to produce records at trial or at another time and place. This is typically a bank or cell phone carrier but can be any non-party thought to be in possession of relevant information. The court may then allow the defense to inspect all or part of the ESI.b.Common Data Types Data in criminal cases is typically far less diverse than the civil field. Email tends to be the most prominent data type followed by a variety of other standard text reports, memos, etc. Email will most often be produced in native format (more on that below) and other documents tend to be rendered in PDF. This material can be easily searched using a number of low-cost text search programs or even the search capability found in the programs themselves. Like