## Facts

- The United States prosecuted a State Department employee and a private individual for bribery-related offenses tied to visa processing.
- The case involved substantial electronically stored information (ESI), including emails and electronic files held by government entities.
- The court previously entered an electronic discovery order requiring the government to produce relevant ESI.
- Defendants contended the government’s electronic search approach (including keyword searches) was inadequate to locate responsive ESI and objected to aspects of the production format.
- Defendants moved to compel additional disclosures about the government’s search methods and to require different or more robust search protocols and production formatting.

## Issues

1. Whether civil e-discovery standards (including principles reflected in Federal Rule of Civil Procedure 34) may guide the adequacy and form of ESI production in a federal criminal case.
2. Whether a court should order changes to the government’s keyword searches or search methodology based on counsel’s objections without expert support.
3. Whether, when the defense does not specify a production format for ESI, the government may satisfy its obligation by producing ESI as ordinarily maintained or in a reasonably usable form.

## Decision

- The court treated civil ESI doctrine as persuasive guidance for resolving criminal ESI disputes where criminal discovery rules do not supply detailed standards.
- The court held that if the requesting party does not specify the form of ESI production, production is sufficient if made in the form ordinarily maintained or in another reasonably usable form.
- The court declined to rewrite or micromanage the government’s keyword searches and search protocols based on unsupported attorney disagreement, explaining that evaluating search-term adequacy is a technical matter generally requiring expert testimony.
- The motion to compel was largely denied to the extent it sought mandated changes to the government’s search methods or additional production requirements beyond a reasonable usability standard.

## Legal Principles

- Civil e-discovery principles may provide useful guidance in criminal cases when assessing ESI production and related disputes.
- When the requesting party does not specify a format, ESI production is acceptable if provided as ordinarily maintained or in a reasonably usable form.
- Whether keyword searches and related electronic search protocols are adequate is typically a technical question requiring expert evidence; lawyer speculation alone is insufficient to justify court-ordered redesign of search methodology.
- Discovery regarding ESI is governed by reasonableness and good faith, not a requirement of perfect or exhaustive retrieval.

## Conclusion

The court largely denied defendants’ efforts to compel changes to the government’s ESI search and production, holding that civil ESI concepts can guide criminal discovery, that unspecified-format requests are satisfied by production as kept or reasonably usable, and that challenges to keyword-search adequacy generally require expert support.


United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008)