Jan. 6 Court Rivals Benefit from Unexpected Evidence Cooperation

Prosecutors and attorneys representing defendants charged with participating in the Jan. 6 Capitol attack have forged an unlikely collaboration in sorting through 5 million electronic files.

Both sides rely largely on a web-based platform built by Deloitte in coordination with the Justice Department and federal public defenders. The software, along with a separate cloud-based system, allows lawyers to organize and share what DOJ has called an unprecedented amount of surveillance, police camera footage, and other digital evidence from the insurrection.

The pre-trial mandatory document disclosure—or discovery—process in such contentious Jan. 6 cases could become a model for reducing antagonism and exchanging electronic evidence in a variety of litigation contexts, lawyers involved say.

“This investigation is a great starting point, and a template for federal prosecutors to follow in all of their future cases,” said Gene Rossi, a veteran former prosecutor who represented an Oath Keeper convicted of obstructing an official proceeding.

The Carlton Fields shareholder, who still called the government’s tactics aggressive and plans to appeal after sentencing, said it would’ve been impossible for him to single-handedly review a database with videos totaling 250 days in length. Prosecutors gave him an early heads up on where he could find clips of his client traversing the Capitol grounds, Rossi said.

Counterbalancing tensions have forced an unexpected cooperation among foes. The government fears those who allegedly committed crimes at the Capitol could walk free if prosecutors unwittingly withheld evidence, while defense lawyers struggle to find relevant videos of their clients’ movements buried inside the footage collected from various sources.

While imperfect, the collaborative approach is showing returns, according to interviews with 14 lawyers and others on both sides of the Jan. 6 docket.

E-Discovery Woes

Even before the 2021 riot, exploding levels of digitally-stored evidence in a range of criminal investigations had bogged down discovery. Voluminous matters can challenge lawyers to mount a well-informed defense while exposing prosecutors to potential discovery missteps that could lead to dismissals and career-tarnishing sanctions.

Corporate crime practitioners, who undergo onerous discovery after the government seizes employee smartphones and office hard drives, say cultivating good will is tough when defense lawyers often suspect prosecutors have something to hide and prosecutors worry they’ll be accused of misconduct.

Jan. 6 lifted the e-discovery challenge to new heights. Millions of videos, texts, social media posts getting uploaded to the Deloitte site and to evidence.com on a rolling basis has stalled cases for many of the more than 1,000 people charged.

There were more than 5 million individual documents uploaded on the Deloitte-run site using Relativity software as of June 1, said Nicole Cubbage, who’s become an e-discovery specialist while working as an attorney on more than 20 Jan. 6 cases. An additional 30,634 files were on evidence.com, she said.

While some defense lawyers grouse about an inability to locate camera angles to potentially exonerate their clients, they also appreciate that prosecutors are willing to help.

“I don’t trust what the government says, period. It’s not my job to trust them,” said Angie Halim, an attorney for Joseph Hackett, a member of the far-right Oath Keepers group convicted of seditious conspiracy and sentenced to 42 months in prison.

But upon making numerous requests for assistance navigating the evidence database, “I didn’t get the cagey sense that I often get from prosecutors,” Halim said.

“I did get the sense that we really are all trying to get to the same page in terms of what exists, how it exists, where it exists, and why,” she said.

In certain respects, the historic nature of Jan. 6 generated a degree of evidence transparency that may never be replicated. But attorneys like Rossi, who normally experience e-discovery hurdles as a white-collar practitioner, see a blueprint for DOJ to maintain.

“They have a lot of things that they’ve learned from this on how to organize massive complex cases, how to provide that information to the attorneys, how to create platforms for easy access to e-discovery,” Rossi said.

Specificity Helps

Other Jan. 6 defense lawyers were reluctant to praise DOJ for offering far more evidence than they’re legally obligated to turn over. They found it was often difficult to digest and mine for potential proof that, for example, police encouraged their clients to enter the Capitol.

Lawyers with complaints, like Kira West who took on more than 20 Jan. 6-related defendants, still acknowledged that the e-discovery experience will ultimately benefit their work.

One takeaway: rather than asking prosecutors to generically produce all exculpatory information, “being specific really helps the government and they’re more willing to help you,” West said.

Dennis Boyle, who’s represented a handful of Jan. 6 defendants, said on two of his cases he sought video camera locations to comprehend the field of view. Although the government initially denied him for security reasons, “prosecutors ultimately gave us a lot of that voluntarily,” Boyle said.

Even if the government’s production doesn’t deliver that crucial missing piece of evidence for the defense, such as an officer striking the first blow, it can still be valuable.

West said that for her 12 to 13 clients who’ve pleaded guilty, it was prosecutors efficiently delivering strong video evidence that helped them abandon hopes of winning at trial.

‘Long History’

The US attorney’s office in Washington, which has spearheaded the Jan. 6 prosecutions, declined to comment for this article.

But through legal filings in hundreds of Jan. 6 criminal cases, the Justice Department has promoted its rapport with defense lawyers to judges. DOJ stated that it’s “diligently working to comply with” a set of e-discovery recommendations adopted by the department and federal public defender leadership in 2012.

Those voluntary guidelines emphasize collaborative communication between opposing counsel to achieve efficiency during complex evidence-heavy litigation. That includes holding multiple meetings and bringing e-discovery experts into the discussions.

In the same court filings, the government also highlighted the benefits reaped from a “long history of collaborating” between two national discovery coordinators—Andrew Goldsmith for DOJ and Sean Broderick for federal defenders.

Goldsmith and Broderick were “primarily responsible for developing” the 2012 recommendations, and have been working closely with their respective sides on discovery issues in Jan. 6 cases, the department wrote in identical status reports filed in multiple cases.

“When it comes to electronically-stored information, we’ve got so much else to worry about,” said Goldsmith, who left DOJ last year, in an interview. “Let’s put our swords down, and let’s expeditiously try to get you what you need and you’re entitled to receive so you can legitimately mount a defense. And the exchange for that is,” the defense says, “‘we’re going to be less adversarial than we otherwise would be.’”

Beyond Jan. 6

When Benton Martin, a public defender in Detroit, was assigned a client charged with felony obstruction of an official proceeding on Jan. 6, he needed to get acquainted with the evidence databases.

Martin soon realized that the litigation support team for defender services nationwide had been preparing for years for this moment.

Broderick and his team “actually really did a herculean effort in helping the government meet its discovery obligations,” Martin said. He was also impressed with the training they provided to public defenders and privately-retained counsel for Jan. 6 defendants on how to cull through the data.

Although his Jan. 6 case concluded with a guilty verdict and five-year prison term, Martin is now in the midst of a healthcare trial for a multi-defendant case involving nearly 5 million electronically-stored documents.

“We have a database that we’re using and some of the principles are very similar on how you can use it,” Martin said. “That way of thinking is going to be with us for definitely the foreseeable future.”