All prosecution team members should be aware of the government’s obligations regarding the preservation and disclosure of electronic communications, or “e-communications,” which include emails, text messages, SMS (short message service), instant messages, voice mail, pin-to-pin communications, and similar means of electronic communication. Although e‑communications offer benefits in the form of speed and efficiency, all team members should understand that case-related e‑communications may potentially be disclosed to the defense. Thus, all team members should understand the risks of e‑communications; the need to comply with agency rules regarding documentation and record-keeping during an investigation; the importance of careful and professional communication; and the obligation to preserve and produce such communications when appropriate. All members of the prosecution team, including federal, state, and local law enforcement officers, are responsible for making available to the prosecutor all potentially discoverable e‑communications. It is the prosecutor’s responsibility to oversee the gathering, review, and production of discovery. The prosecutor should discuss these matters with all members of the prosecution team at the outset and during the investigation.

The following guidance applies at all phases of a criminal case including investigation, trial preparation, trial, and post-trial:

1. • Prosecution team members should exercise the same care in generating case-related e-communications that they exercise when drafting more formal reports, and only write and send e-communications that are appropriate for displaying to the court, the jury, and the public.

2. • Prosecution team members should exercise caution when using e-communications with non-law enforcement witnesses. Individuals not on the prosecution team, including victims, lay witnesses, and outside experts, should be informed that e-communications are a written record that may be disclosed to the defense and that appropriate care should be exercised.

3. • Substantive e-communications among prosecution team members, including communications containing factual information relating to witnesses, evidence, or investigative activity, should be avoided except when, to meet operational needs, they are the most effective means of communication. Substantive case information should be recorded in formal reports.

4. • E-communications, like formal reports, should state facts accurately and completely; be professional in tone; and avoid witticism, careless commentary, opinion, or over-familiarity in tone.

5. • Prosecution team members should not use personally owned electronic communication devices, personal email accounts, social networking sites, or similar accounts to transmit case-related information to witnesses or other team members.

6. • Prosecution team members should preserve for later review and possible disclosure all substantive e-communications created or received by team members during the course of an investigation and prosecution, and all e-communications sent to or received from lay witnesses, regardless of content.

7. • E-communications should be preserved in their native electronic format; when that is not feasible, another method of preservation should be identified and used.

8. • If the e-communication contains sensitive information, the prosecutor should consider whether to file a motion for a protective order, seek supervisory approval to delay disclosure, make appropriate redactions, summarize the substance of an e‑communication in a letter rather than disclosing the e-communication itself, or take other safeguarding measures. Sensitive information includes information that would affect the privacy or safety of any person, reveal investigative techniques or national security information, or compromise the integrity of another investigation. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.

9. • Prosecutors handling an investigation or case involving national security related issues or intelligence community equities should consult with the National Security/Anti-Terrorism Advisory Council (ATAC) Coordinator in their office and/or the National Security Division for specific guidance on searching for, gathering, reviewing, and disclosing communications in these areas, as well as special procedures (such as the Classified Information Procedures Act, or “CIPA”) that may apply.

For background and additional guidance on these matters, see the March 30, 2011, Deputy Attorney General Cole memorandum, Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.*

*Note that the discussion of personal use of social media in Deputy Attorney General Cole's 2011 memorandum has been superseded by JM 1-9.000 (Personal Use of Social Media).

[added December 2019]