| D. New Jersey |
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Reminder: These case digests are provided for informational purposes only, and do not constitute legal advice. Anyone conducting legal research on a particular topic or in a specific jurisdiction is advised to supplement these materials with their own efforts or those of a qualified attorney whom they have hired for that purpose.2010U.S. v. Suarez, Criminal Action No.: 09-932 (JLL) (D. N.J. 10-21-2010) — Defendants in a public corruption case filed a discovery request seeking copies of text messages sent between FBI agents and various cooperating witnesses. After some confusion about what material was in fact available, the Government produced messages from the account of one of the FBI agents involved in the investigation. The text messages of other agents were irrecoverable. The Court held a text message discovery hearing in which various technical specialists testified about the transmission and storage of FBI text messages. The Court concluded that the requested messages were relevant, had been in the Government's possession (either in its servers or on the agents' individual mobile devices), and that the Government had violated the Jencks Act by failing to preserve potentially relevant statements of cooperating witnesses despite reasonably anticipated litigation. Because the Court also concluded that the Government had not acted in bad faith, it limited Defendants' remedy to the issuance of a spoliation instruction, which would permit (but not require) the jury to infer that the contents of the text messages was favorable to the Defendants. However, the jury would also be instructed to consider any rebuttal evidence by the Government.2009
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