eLessons Learned is proud to be a Media Partner with eDiscovery Readiness for Government, a two-day training conference exploring best practices for proactive electronic records management, information assurance and litigation readiness. Scheduled to be held at the Sheraton in Arlington, VA, June 8-9, 2010, this event is specifically designed for executives in the Federal and Government agencies involved with data and records management.

Speakers at the event include the Honorable John M. Facciola, US Magistrate Judge, US District Court, District of Columbia, Jason R. Baron, Director of Litigation, National Archives and Records Administration (NARA), Miriam Nisbet, Director, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA), Catherine Teti, Managing Director for Knowledge Services, Chief Agency Privacy Officer, Government Accountability Office (GAO), and other respected members of the Federal Government.

Discounts available for executives in Federal and Government agencies. Call 1.646.200.7530 or visit http://www.eDiscoGov.com to register for the event and to view an updated agenda.

In Kounellis v. Sherrer, 529 F.Supp. 2d 503 (D.N.J. 2008), plaintiff prisoner brought a Section 1983 action against correctional officers and prison officials after the officers allegedly assaulted the prisoner in retaliation for his filing of administrative complaints against the officers.  After the alleged assault, the prisoner repeatedly requested a copy of the video surveillance footage from a camera in the area of the alleged assault.  Defendants never provided the prisoner with the copy.  Nor was a copy ever preserved, thus depriving the prisoner of the only source of evidence other than his word that he was assaulted.  As a result, the defendants were subjected to sanctions including an award of attorneys’ fees and an adverse inference jury charge.

To be subject to sanctions for spoliation of evidence, the party facing sanctions must have had a duty to preserve relevant evidence in anticipation of probable litigation that if not preserved would harm the other party’s case.  In short, someone who has something that the other party needs cannot intentionally or negligently (i.e., conveniently) lose the evidence.

In Kounellis, the defendants were supposed to preserve video surveillance footage because the footage was the only evidence, other than the prisoner’s word, that an assault had taken place.  To make matters worse, the defendants also knew that charges against the prison had been filed which would require litigation.  As a result, the defendants had relevant evidence in their possession while they also knew that that evidence would be needed by the prisoner at the disciplinary hearing.  Unfortunately, that evidence was never held onto and the prisoner was deprived of the only evidence that could support his side of the story.

In sanctioning the defendants for spoliation of evidence, the judge determined that it was the defendants’ fault for losing the evidence and the prisoner’s case suffered as a result.  As a result, the defendants were subject to monetary penalties.  More importantly, the jury was instructed by the judge that they were allowed to assume that the missing surveillance footage would have been harmful to the defendants.

The ability to prevent spoliation depends on whether the spoliation was intentional or negligent. Accidents do happen and future accidents can be prevented by establishing rigid procedures for preserving evidence when that evidence may be needed in a lawsuit.

The district court denied Bennett’s motion to suppress the marijuana and convicted Bennett of importing marijuana and intending to distribute marijuana. Following his convictions, Bennett appealed in anyway humanly possible, since otherwise he would be spending over 10 lovely years in prison.

On Appeal, the Ninth Circuit found that Bennett’s boat was seized pursuant to a valid border search; therefore, his possession conviction was affirmed.

E-Discovery Controversy:

The issue of illegal importation centers around evidence obtained from a global positioning system (“GPS”) unit aboard Bennett’s boat.  Illegal importation only occurs when a defendant imports a controlled substance into the United States from any place outside thereof. 21 U.S.C. § 952(a). Here, Bennett’s boat was clearly in U.S. waters when it was spotted by Officer James, therefore, the Government must show that Bennett came from Mexico with the marijuana onboard.

While searching Bennett’s boat, U.S. Customs Officer Malcolm McCloud Chandler claimed that he found a GPS that revealed Bennett had traveled from Mexican waters into San Diego Bay. This particular device came with a “backtrack” feature, which allowed a user to view the boat’s journey from that day. Chandler testified that while he did not take the GPS device into possession or log any of the information from the device that using the backtrack feature he was able to see that Bennett had come from waters off the coast of Mexico to the U.S.

Bennett objected to the use of this evidence under the best evidence rule, which provides that in the case of data stored on a computer or similar device that a printout or other output readable by sight must be presented to prove the contents of the device. Fed. R. Evid. 1001(3). The district overruled Bennett’s objection.

Here, the Ninth Circuit found that the best evidence rule does apply because Chandler was testifying about the contents contained within the GPS unit since he never actually saw Bennett’s boat travel this path. Thus, since the Government failed to produce the GPS unit, a printout, or other representation from the GPS unit and did not provide any reason for why it would have been difficult to do so the testimony of Chandler regarding the GPS unit is inadmissible. As a result, the Court decided that Bennett was prejudiced by the erroneous admission of the GPS testimony and no other evidence was available to support a conviction of importation against Bennett.

Courtney is a graduate from UCLA and has since graduated from Seton Hall Law School with a concentration in intellectual property law.

First, the SEC produced massive amounts of documents. Specifically, the SEC produced 1.7 million documents (approximately 10.6 million pages), in response to defendant’s request for documents.  Moreover, these documents were in fifty-four separate categories maintained in different databases and containing different metadata protocols. Defendants were none too pleased about this and argued that the SEC failed to identify documents in response to its request for documents supporting particular factual allegations and instead dumped an unreasonable volume of documents.

In response, the SEC claimed that it did not “maintain a document collection relating specifically to the subject addressed” and thus its production reflected the documents as they were “kept in the regular course of business.”

However, during the course of discovery, information surfaced about the existence of approximately 175 file folders maintained by the SEC concerning the specific factual allegations of the complaint and maintained in the regular course of agency business. The SEC refused production of these folders claiming that they were protected under attorney work product doctrine. The court rejected SEC arguments and held that the 175 file folders were not protected as work product. The court based its conclusion on the following: 1) “core” work product  protection applies to a compilation only if it is organized by legal theory or strategy; 2) even if this compilation were entitled to any work product protection-on the tenuous theory that the compilation was prepared in anticipation of litigation, the defendants have shown a “substantial need for the materials … and cannot, without undue hardship, obtain their substantial equivalent by other means”; and 3) it is “patently inequitable to require a party to search ten million pages to find documents already identified by its adversary as supporting the allegations of the complaint.”

Furthermore, the court noted that conducting an investigation-which is by its very nature not routine or repetitive-cannot fall within the scope of the “usual course of business.” Thus, the court ordered SEC to produce the documents in response to defendant’s request for information to support each factual allegation of the complaint.

Second, the SEC failed to produce any emails in its initial production.  Although the SEC conceded that it had not produced e-mail “generated or received by the Commission itself”, it argued that nearly all responsive e-mails were privileged, protected, or non-substantive. Additionally, the SEC argued that the defendant had not made the “necessary showing” so as to require it to undertake the “costly and time-consuming search that would be required to identify responsive emails.”

The court found the SEC’s blanket refusal to produce any incoming or outgoing e-mails to be “unacceptable”.  The court further noted that since the SEC did not even make an attempt to negotiate search terms that would weed out privileged, protected, or irrelevant e-mails, it  “cannot reasonably assert that a routine aspect of modern discovery-search and review of a party’s e-mail-is beyond its capability.” Accordingly, court ordered the parties to meet to negotiate search terms and appropriate limitations to subject matter and date.

Third, the SEC showed a general lack of co-operation during discovery.  The SEC objected to defendant’s request seeking several general categories of documents by claiming that the requests were overly broad and unreasonably burdensome.  Additionally, the SEC failed to co-operate with the defendant when the defendant proposed that it would establish a search protocol that would balance identification and disclosure of relevant documents against a strain on agency resources.

Instead, the SEC unilaterally limited its search to “centralized compilations” in three selected divisions, which yielded no results. Further, the SEC claimed that the “massive endeavor” of manual searches of large collections of paper records from analogous cases was “neither justified nor required.” The court rejected the SEC’s objections as “patently unreasonable” and ordered the parties to confer to establish a search protocol.

Thus, the court noted that although the SEC has raised legitimate concerns about the burdens imposed by particular requests, “it cannot unilaterally determine that those burdens outweigh defendants’ need for discovery.” The court concluded that at the very least, “the SEC must engage in a good faith effort to negotiate with its adversaries and craft a search protocol designed to retrieve responsive information without incurring an unduly burdensome expense disproportionate to the size and needs of the case.”

Sheetal Patel is a third year student at Seton Hall Law School and is an Associate Editor of the Seton Hall Circuit Review

Some of you more astute individuals may have already identified the snafu with which the FBI now has to deal.  This ruling basically allowed the FBI to seize electronic information, but did not permit its review until Jefferson had the chance to look at it to determine whether or not it was legislative in nature.  But how can Jefferson review information after it has been seized?  When the case was remanded to U.S. Magistrate Judge John Facciola, he outlined a process that can serve as a cost-effective solution for litigation involving production or withholding of potentially privileged electronic information.

When the case was remanded, the DOJ and Jefferson’s attorneys agreed to hire a consulting firm that specialized in digital forensics and electronic discovery to act as a neutral third party and facilitate the searching and review of the material.  The DOJ would specify the exact parameters that they wanted to search in their review of documents.  The firm would execute these search parameters, thereby allowing Jefferson to review material and assert privilege regarding the appropriate documents before the documents were released to the DOJ.

Within the consultation, the parties agreed to these forensic protocols, including specification of search parameters, filtering and keyword searching, and specification of form of production (in this case, printed documents and .pdf versions).  Then, the consulting firm would deliver a box  and CD-ROM to Jefferson’s firm containing the documents, allowing them two days to review the documents and file any motions to assert privilege over those documents.  In order to redact the documents efficiently, the documents were referred to by a Bates-number (that corresponded to the Bates-numbered boxes).  Once redacted, the documents (along with the new CD-ROM) were delivered to the DOJ, with the process continuing until all relevant nonprivileged documents were produced.

The conference by the parties and their agreement on this process allowed discovery to move efficiently.  While this case referred to constitutional issues and legislative materials, this process can work for any litigation matter in which a large volume of electronic information must be reviewed for privilege.  By hiring a third-party consultant, it can provide both sides with the comfort that a workable, fair protocol can be constructed and implemented.

But how exactly can one set this up in other cases?  A brief, step-by-step run-down can provide the answers:

• Set up conference between two parties and third-party in order to agree upon procedural protocol
• Agreement upon forensic preservation of data, i.e. litigation hold, as well as the methods to be used to preserve data
• Agreement upon how the data will be handled including collection (search terms, handling of unsearchable documents)
• Specification of time frame to allow for review of the data by the owning party and how the data will be produced
• Creation and submission of a privilege log and specification as to how nonprivileged items will be redacted and delivered

Although costs of forensic consultants and e-discovery can be significant, setting up procedures and protocols for all scenarios in the beginning of the litigation process has the potential to drastically reduce the overall cost of the litigation because the volume of electronic information can be reduced through targeted filtering, allowing the focus of the litigation to remain on the merits, rather on the discovery process. If parties are able to cooperate on details of litigation, the results can be an expeditious and effective solution for dealing with privilege in the e-discovery realm.

Matthew is a magna cum laude graduate of Seton Hall University, where he received a B.S. degree with a concentration in Accounting, and is currently a third year student at Seton Hall Law.

As you’ll see, the Plaintiff in Lake v. City of Phoenix does everything right.  After receiving a hard-copy of a document and smelling something fishy, he requests metadata of the electronic version to substantiate the document’s authenticity.  Lake is told that he can’t get the metadata.

Dead-end?  Nope.  If there’s a will there’s a way.  By requesting the emails passed between his superiors and police reports, Lake is able to access information that may explain better the shadiness (or lack thereof) behind his demotion at work.

Procedural History

After filing an Equal Employment Opportunity Complaint against “the City” (Not to be confused with the MTV show), Phoenix Police Officer David Lake submitted various requests for public records to the City.  The City failed to produce several records related to his request and delayed the production of other records.  So what does one do?  Sue. Duh!

Lake initiated a special action against the City alleging it withheld pertinent records from disclosure with an improper motive.  Why would they do such a thing?  According to Lake, the City was trying to cover up information relevant to the EEOC he filed after being demoted.  The world doesn’t revolve around you, Lake.  While you might not be on the devil’s side, we shall see the law most certainly is.  In this action, Lake seeks to compel the City to produce all relevant records requested, to cover the fees and costs associated with the special action and to cough up double damages.  The Superior Court held that it lacked jurisdiction to hear the matter and that Lake was not entitled to the relief sought.

Issue #1: Jurisdiction

The Arizona Court of Appeal reversed the Superior Court’s holding on jurisdiction because A.R.S. § 39-121.02(A) states that any person who is denied access to public records has the right to challenge that decision in the Superior Court, This means that the Superior Court did in fact have jurisdiction to hear Lake’s complaint.  Whether Lake was entitled to the relief sought for the wrongful denial of his public records requests, however, is the focus of this review.

Issue 2: Public Records Request

Request #1: Supervisory Notes

Lake contends that four of his eighteen public records requests were denied by the City.  Lake wanted all notes kept by certain lieutenants from a specific time period, which documented supervisory performance.  The City responded positively and met Lake’s request with hard copies of the electronic documents containing the notes.   Lake, do you have everything your little heart desires?  No!

Suspecting the notes made by Lieutenant Conrad were backdated, Lake requested metadata, or specific file information contained inside the file, for each document to confirm its authenticity.  Lake believed the City wrongfully denied his request for the metadata on Conrad’s notes and had provided him with a hard-copy of the notes which seemed to have preceded his demotion.  Such notes were useless in assessing whether Lake’s demotion for shady reasons.   If you’re demoted after filing an EEOC complaint against your employer, you have to wonder if this was retaliation.  Oh Lake.  You are such a smarty pants! So Lake requested the metadata associated with Conrad’s notes, which would provide him authenticating information about the electronic document’s creation date, access date, and other useful details not revealed in the hard-copy document.  The City denied Lake’s request.

The Court of Appeal noted that Arizona law broadly defines ‘public records’ and adopted a presumption in favor of disclosure to honor public records requests, but only after a document has been classified as a public record does this presumption kick in.   Metadata falls outside of the three alternative definitions of a ‘public record’ that are recognized by Arizona courts.  According to Matthews v. Pyle, 251 P. 2d 893, 895 (1952), metadata must be (1) made by the officer pursuant to a duty (2) required to be created by law or (3) a written record of the officer’s transactions.  Because Lake’s request for metadata does not fall under any one of these definitions, he would not reap the benefits of the presumption. Though federal courts have been allowing parties to discover metadata, this Court explicitly states that there isn’t “any authority suggesting that Arizona’s public records law is co-extensive with evidentiary rules in a litigation context.  Nor do we find any evidence of legislative intent to construe Arizona’s public records law so broadly as to mean that if a document is discoverable in connection with a lawsuit, then it must also necessarily be disclosed by an agency under the public records law.”  (Full Case PDF, p.12)  The Court’s message was clear: The public records law makes a distinction between metadata records and public records.

So without the metadata, Lake and everyone else would have to take the supervisory notes for face value, though the documents may have been backdated or altered.  Desperate times call for desperate measures.  How else can Lake enter the shady underworld behind his demotion?   Sue some more and hope for the best.

Request #2: Police Reports

Lake made another request to the City, which was for any aggravated assault reports or other police reports listing some Lieutenant as victim.  Lake advised the city to use the PACE system to find the records, but the City said “No.  This is not allowed under Arizona law.”  The City argued that because the PACE system was linked to databases providing criminal justice information, using PACE to conduct a public records search was against the law because it would provide information to unauthorized individuals.  One would think the Phoenix Police Department’s Records and Identification Bureau or anything that says ‘Police’ would actually know how to abide by the law, and not just claim to follow it.  Not!  The Court of Appeal held that a police report that is undoubtedly a public record cannot be withheld from production by virtue of the method employed by the City to catalogue the document.  Oh, Lake, you’re as stubborn as an ox!  You finally got a piece of the pie!

Request # 3: Police Emails

The Court of Appeals also held that the City, in part, wrongfully denied Lake’s third public records request, which was for emails between Commander Campbell, Lieutenants Soha and Conner about Lake.  Because the city retains emails for thirty days, and since Soha had transferred to another job more than thirty days ago, Soha’s emails were deleted, and so the City rightfully denied Lake’s request.  But wait Lake!  God has answered your prayers.   The Court found that the City wrongfully refused Lake’s request for Campbell’s emails because Campbell had left his job only ten days before Lake’s request.  That means that the City still had Campbell’s emails.  That also means Lake is going to get those emails.  In analyzing the issue, the Court noted that Arizona’s policy of disclosure was not outweighed by confidentiality concerns.

Request #4: Documents on an Investigation

Lake also challenged the City for denying his request for documents regarding an unfinished investigation of a shooting.   The Court held that absent concerns over confidentiality, privacy and the best interests of the state, Arizona Supreme Court precedent has made it clear that reports of ongoing police investigations are generally not exempt from Arizona’s public records law, and as such, disclosure is required.  I gotta give it to you Lake.  You are quite the hunter.

Issue 3: The City is Moving Slow

So Lake complains that the City was slow and that it violated A.R.S. § 39-121.01(E) when it failed to produce the permitted public records promptly.  Arizona courts have understood “prompt” to mean “quick to act” or “without delay.”   The Court of Appeal reviewed the Superior Court’s decision on this matter, and held that the City met its burden when it explained that given the extensive nature of Lake’s requests, the documents were produced promptly.  Sorry, Lake, but you’re fast-paced ways should be saved for NYC.  Prompt is excruciatingly slow by our standards.

Issue 4: Attorney’s Fees For Wrongful Denial

Alas, we get to the moolah.  Lake wants attorney fees and other legal costs associated with this action but he must look to A.R.S. § 39-121.02(B) which requires Lake to prove that he substantially prevailed in his public records requests.   Because the Court of Appeals reversed a portion of the Superior Court decision, it remanded the case back to the Superior Court to decide whether or not Lake substantially prevailed in his special action and thus entitled to attorney’s fees and costs incurred in connection to the special action.

It pays to investigate. If someone says “No” you have to wonder if there is more going on that you don’t see.  If you take anything away please make it this: Don’t judge a book by its cover.  You might get the short end of the stick, and “foolish” stamped on your forehead.

Noura is a 3L at Penn State-Dickinson at University Park and is a Smith College alumna.  Upon graduation, she would like to practice entertainment law or work for a legal consulting firm.

The primary problem in this case was that the employees involved basically failed to maintain electronic records management systems as required by federal law. Similarly, the record keeping guidelines in place were insufficient to pass muster under the statute.  The primary problem with what the defendants did (or failed to do) in this case is that the government failed to establish an adequate system that would have prevented the inappropriate deletion of millions of federal and presidential records.  Furthermore, the defendants also allegedly failed to establish good enough records management systems for archiving and preserving White House e-mails.  So, basically, certain people in the government didn’t take care of emails and other electronic records like they were supposed to do, an ethics watchdog group got pissed off (maybe because they have nothing better to do than chase deleted emails), and then CREW (the plaintiff) sued the various government entities to try to make sure they comply with the statutes.

One of the key takeaways from this case is that individuals and organizations subject to record keeping requirements specified in statutes should seek to comply with those requirements to every extent possible.  Failure to abide by the statute not only may subject the individuals and organizations to liability as specified in the statute, but also to potentially troublesome lawsuits brought by third parties – like government watchdogs.

Thinking you are in compliance with the legal requirements doesn’t mean that you are.  Maybe asking a third party consultant (like a law firm with expertise in the area) to examine the current protocols for compliance with the statutory requirements is a better avenue to ensure compliance. Of course, this can cost big bucks (cha-ching for the consultant), but that cost is something the organization would have to weigh in evaluating whether to hire the consultant.  In the end, it would come down to a cost-benefit analysis, although one wonders whether evaluating statutory compliance under a cost-benefit analysis should even be done in the first place.  On second thought, maybe this is just a cost of doing business, and shouldn’t even be evaluated in the first place. Just comply, eat the cost, and move on to more important matters. In the end, all I have to say is good luck if you’re the one that has to make that decision.

Timothy D. Cedrone is a J.D. candidate at Seton Hall University School of Law, class of 2009, and a 2006 summa cum laude graduate of Seton Hall University Stillman School of Business, where he earned a B.S. in Business Administration with concentrations in Sport Management and Finance.