Police Body Camera on Tactical Vest for Officers

Court’s Police Body Camera Opinion Highlights E-Discovery Issues

The California Supreme Court recently issued an opinion that analyzes the public disclosure of police body camera footage and demonstrates the overlap between e-Discovery processes and other records production schemes.

The opinion, National Lawyers Guild v. City of Hayward [https://www.courts.ca.gov/opinions/documents/S252445.PDF], interprets a California law regulating government transparency, but the Court’s technological discussion may also interest ACEDS professionals and like-minded e-Discovery practitioners.

The Court analyzes a California Public Records Act (PRA) provision that permits governments to charge a fee for “data compilation, extraction, or programming” when producing electronic records in response to a records request.

In National Lawyers Guild, the City of Hayward redacted police body camera footage taken during a protest over grand jury decisions to not indict the police officers involved in the deaths of Eric Garner and Michael Brown, both unarmed African American men. The City claimed that redaction qualified as data “extraction” because the police needed to take out sensitive medical and police tactic information. The National Lawyers Guild, which requested the footage, disagreed, and argued that “extraction” only applied when the government agency was creating new content from existing records. The Court sides with the Guild.

The Court held that data “extraction,” as used in the PRA at California Government Code section 6253.9, does not apply to records redaction, but, instead, relates to record identification. Applying the Court’s holding to the Electronic Discovery Reference Model (EDRM), data “extraction” takes place during records Collection, instead of records Review.

The PRA and the e-Discovery processes are parallel practices. According to the Court in National Lawyers Guild, “[b]efore providing access to requested records [under the PRA], public agencies need to locate and collect records, determine which records are responsive, determine whether any portions of responsive records are exempt from disclosure, convert the records into a reviewable format, and, if requested, create a copy of the record.” Translating this into EDRM terminology, public agencies must perform Identification, Collection, Processing, Review, Analysis, and Production, and most of this process must be performed as a cost of doing business.

The Court states that their opinion was promoted by the unique issues associated with producing electronic records. California Government Code section 6253.9 recognizes that the production of electronic records should be easier than paper records, but acknowledges the “difficulties associated with retrieving responsive data from massive, potentially intractable databases,” according to the Court. E-Discovery professionals face similar hurdles.

Practitioners in both areas of the law are tasked with complex productions, prompting technological solutions. Justice Cuellar devotes his concurrence to these automated antidotes.

He writes, “Imagine a not-so-distant future when government entities deploy more thoroughly automated, artificially intelligent systems for responding to [public records] records.” He predicts that, “[s]uch technology could readily help agencies be more accurate, efficient, and thorough.”

Some local agencies are turning to technology to assist with records collection and production. Companies like GovQA and JustFOIA help with this type of processing. But what Justice Cuellar may be hinting at is records review on a whole other level, such as Technology Assisted Review or TAR.

Justice Cuellar optimistically suggests that these types of advanced tools may qualify for the fee provision in California Government Code section 6253.9, permitting governments to recoup some of the costs, although this issue was not before the Court in National Lawyers Guild. If so, local agencies could be incentivized to invest in some of the same platforms that E-Discovery professionals are using, such as TAR. This would be a welcome development.

Government agencies increasingly use technology to provide services and expand communications to their constituents, creating electronic records that are publicly disclosable, such as body cameras, databases, and social media, to name a few. At the same time, records requests have become ubiquitous and incredibly complex. As shown in National Lawyers Guild, e-discovery practices could help government agencies to response more efficiently to PRA requests.

No Love for the 2015 Discovery Amendments: Landry v. Swire Oilfield Services

February is the month of love. Hearts, candy, and flowers. The hint of spring harkening. The enthusiasm of a new year upon us.

But for one federal court judge, the New Year brought no love.

In early January 2018, Judge James Browning, from the district of New Mexico, issued an opinion reviling the 2015 Federal Rules of Civil Procedure (FRCP) amendments – the same amendments that most of our e-discovery community heralds. Why no love?

The opinion came in Landry v. Swire Oilfield Servs., No. CIV 16-0621 JB/LF (D.N.M. Jan. 3, 2018), a suit involving Fair Labor Standards Act claims by oilfield operators who assert they were not paid appropriate overtime and minimum wage rates. In discovery, the plaintiffs sought electronic payroll records controlled by a third-party payroll processor. Controversy arose when the Defendants produced 12,249 pages of payroll records in a PDF format, without labeling or indexing. The Plaintiffs objected, arguing that the documents were not produced in an electronically searchable format, just as they were kept in the usual course of business. The Defendants stated they were granted a one-time download of records into PDF files before their relationship with a third-party payroll processor ended. They further contended that they could no longer demand the information from the former payroll vendor, asserting that what they produced was in a “reasonably usable form” per FRCP 34.

Complex databases; access, custody and control; production format – all of the fixings for a significant discovery dispute.

Many of you know what comes next: protracted motions, multiple hearings with the court, deadline extensions, drawn-out depositions. In fact, in one hearing, the court stated that sometimes “you have to do a little discovery to get discovery” and ordered deposition testimony to get to the bottom of the payroll database issues between the Defendants and their third-party processors.

This “discovery about discovery” set the stage for Judge Browning’s January 3rd Order. In the Order, Judge Browning went deep into the annals of FRCP history, studying the scope of discovery language in Rules 26 and 34 dating back decades. His conclusion? Almost 20 years of FRCP amendments have narrowed the substantive scope of discovery and injected courts deeper into the discovery process.

Towards the amendment drafters, he ridiculed, “Instead of being Aristotelian and trying to draft rules, the 2015 amendment drafters largely opted to make federal judges Plato’s enlightened guardians. They have decided that no single general rule can adequately take into account the infinite number of possible permutations of different claims, defenses, parties, attorneys, resources of parties and attorneys, information asymmetries, amounts in controversy, availabilities of information by other means, and other factors.”

He further expressed his frustration with the role of active judicial discovery management. “They have dropped all discovery disputes into judges’ laps. The drafters have decided that this determination requires the individualized judgment of someone on the scene,” stated Judge Browning.

In discussing the process behind the 2015 FRCP amendment promulgation, Judge Browning hinted at the conservative biases of the drafters, resulting in amendments favoring corporate defendants. Highlighting a New Mexico article from January 2016, he wrote, “The Court shares some of the concerns with the new amendments being pro-business and giving corporations new tools to limit plaintiffs’ discovery.” He went so far as questioning the benefits of the 2015 amendments, writing “…the Court is skeptical that the 2015 amendments will make a considerable difference in limiting discovery or cutting discovery costs.”

In the end, Judge Browning ordered the Defendants to produce the documents in the electronic format requested by the Plaintiffs. However, he also granted a couple of the Defendants’ discovery motions, including a request for a one-week discovery deadline extension. In essence, despite the peevish (but thorough) Order, Judge Browning worked to find a bit of a balancing act between a corporation and the plaintiffs needing access to relevant information.

If there is one thing that this 50+ page order illustrates, it’s this. E-discovery is messy. But, as ACEDS professionals, that’s probably nothing new to you. Difficult discovery scenarios bring out the dark side of both the FRCP and the judges charged with interpreting those rules. Yet, no amount of love for cooperation or proportionality – or any other favorite provisions of the 2015 amendments – can outweigh the reality that the efficacy of some of the rule changes remains to be seen.

Statue of justice

Boilerplate Objections

Judge Peck sends a warning shot to the bar about meaningless, repetitive boilerplate responses to document requests.  Judge Peck, in essense, tells counsel to RTFR (a Chris Dale acronym meaning read the F(abulous) Rules and to update their template responses to include specific answers to requests.  Unless objections observed the “requirement to state objections with specificity”, he would consider boilerplate objections as waivers to all but privilege claims.

Fischer v Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017)

Inherent Authority

The US Supreme Court examined the inherent authority of the court to apply sanctions for discovery misconduct.  The Court validated the court’s authority to apply a sanction for fees, but limited the amount to determine “only the portion of his fees that we would not have paid but for” the misconduct at issue, and without including amounts designed to punish.

Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (Apr. 18, 2017)

Overseas Data and the Supreme Court

With the General Data Protection Regulation about to go live in May 2018,  all eyes are on the Supreme Court as they approach a SDNY Microsoft case where Microsoft does not want to turn over the data they stored in Ireland in response to a US warrant.  There is Google case pending with a similar situation, so this particular case will have a wide ranging impact.

US v Microsoft, cert granted Oct 16, 2017

Waymo

Consummate blogger @RalphLosey’s play by play on “Waymo v. Uber” #ediscovery case has everything: the Jacobs letter, ephemeral communication tools, Rules and ethics. Richly cited, with expert commentary. Waymo will be influential for what has happened already:  losing credibility with the judge for not disclosing relevant material, the government sua sponte producing a document in a different proceeding, disgruntled employees disclosing organizationally privileged communications.  As with the Qualcomm case, Waymo will be a case cited for what not to do.

Organizing Those Old Boxes in the Attic: E-Discovery and the JFK Documents

If you have cleaned out an attic, you’ve probably run across a box of forgotten treasures. I remember some years ago when my mom sold the house I grew up in, she found a copy of the very first short story I wrote in the fourth grade, which was a finalist in my county’s young authors contest, and some other school papers written in my child’s scrawl.

Other times, that trove of forgotten treasures is so overwhelming, the thought of beginning to sift through everything seems impossible.  Even though you know there are valuable things there, it’s easier to shut the door to the attic and tell yourself you’ll do it another time.

Now imagine that those boxes in the attic contain information about one of the biggest events of the past century and have been locked away for 50 years. That’s what researchers faced this past month when the National Archives released nearly 30,000 documents related to the JFK Assassination.

You don’t have to be a historian to understand the excitement this brings – the questions surrounding the assassination of John F. Kennedy have continued across each generation since November 22, 1963. What did the CIA and FBI know about Lee Harvey Oswald? Why was he in Mexico City weeks before the shooting, and what were his connections to Russia and Cuba? What do statements, classified until now, from people like Jackie Kennedy and mafia bosses reveal? The problem is, most of the files are documents and photos imaged into single PDF files which had to be gone through individually using only the table of metadata provided by the National Archives.

This is where Ian Campbell, CEO of iCONECT (an ACEDS affiliate) saved the day. As he said in a recent interview, “I figured, we have a technology that provides multi-party access to confidential information every day. Why not make this easier for everyone?” iCONECT imported the PDF files, OCR’d them and built a search index where the data could be searched using a keyword, date, document-type, agency, or to/from fielded data and viewed (or listened to in the case of audio files) within the platform. If only someone would come to your attic and do this!

It is also important to note the speed at which iCONECT loaded, cleaned, and indexed the documents (including audio and video), and that they made it freely available to the general public. They also solved scaling and training issues that have challenged our community in a weekend, and are using the feedback to improve their product.

Other e-discovery companies (such as ACEDS affiliate Logikcull) are also making the JFK archives freely available using their software solutions as well.

Whether you are interested in JFK or not, the technical aspects of data management, collection, and production regarding the archive will be of interest to anyone working in the world of e-discovery. That’s why the ACEDS Educational Series is hosting the pre-recorded webinar, 5 Things We Learned by Hosting the JFK Documents, featuring Ian Campbell, on Friday December 15th, at 1pm EST. This webcast was originally presented on E-Discovery Day and is back by popular demand. Request your FREE access to the files prior to Friday’s webinar here. This is something you won’t want to miss.

Worst Nightmare: Court Uses 502 to Compel a Sneak Peek of Privileged Docs

Court of Federal Claims Judge, Margaret Sweeney, who presides over Government litigation regarding oversight of financial institutions, has issued another opinion on attorney client privilege, this time distinguishing Federal Rule of Evidence 502(d). In the most recent status report in the case, Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385(Fed. Cl. Oct. 23, 2017), the defendant produced an additional 3500 documents in response to an earlier order by the court, but in so doing, produced 38 documents that were privileged, then after a review of those, then produced another 22 additional documents. The plaintiff asked to use the quick peek procedure under Rule 502(d), to which the defendant disagreed.

Judge Sweeney, clearly frustrated by lack of cooperation, fashioned a remedy to move the case forward on jurisdictional discovery as a way to bring the long running case to a merits determination.

Judge Sweeney required the defendant, among other things, to:

  • Provide plaintiffs with the opportunity to review the approximately 1500 documents at issue—which are currently being withheld by defendant as privileged pursuant to the deliberative process and bank examination privileges—at a time and place to be determined by defendant.  In so doing, defendant shall not be deemed to have waived any privileges as to these documents.

Judge Sweeney also rejected Sedona’s comment disarming 502’s use as a weapon:

  • [FRE] 502(d) does not authorize a court to require parties to engage in ‘quick peek’ … productions and should not be used directly or indirectly to do so. … Rule 502 was designed to protect producing parties, not to be used as a weapon impeding a producing parties’ right to protect privileged material. Compelled disclosure of privileged information, even with a right to later claw back the information, forces a producing party to ring a bell that cannot be un-rung.

This case may be distinguished due to the comingling of confidentiality into the privilege designation and FRE 502’s focus on privilege protection, the resources of the court anticipating an in-camera review and the Judge’s lack of patience with the producing party.

K&L Gates discusses the case, and provides a direct link to the opinion here.

Data, Data, Everywhere: Critical Cyber Security Updates for 2018

In a recent NPR podcast entitled, “Your Cell Phone’s A Snitch,” we hear a story which,  in many ways, is old news. They share talk about a string of armed robberies in Detroit in 2010, and how the police and FBI began collecting data from a suspect’s cell phone carrier, so they could build a clear and detailed understanding of his life: “where he went and when, which Sundays he skipped out on church, and which nights he decided to sleep somewhere other than his own house.”

In the end, the suspect, Timothy Carpenter, received 116 years in prison after authorities compiled data from four months of surveillance; all of it without a warrant. Case closed. Now it has resurfaced and has led to a Supreme Court hearing , which will determine if this type of warrantless search and seizure of cell phone records are in violation of the Fourth Amendment. .

Tracking electronic data for use as evidence has become a daily occurrence. According to NPR, cell phone carriers receive 10,000 requests per year,  such as the one in the Carpenter case. . With this normalcy, many of us have accepted the Orwellian logic that comes with our digital world: that you remain anonymous if you go with the crowd; that if you’re innocent, you have nothing to hide. While most of us aren’t going to give up our smartphones and go off the grid — because let’s face it, digital devices have revolutionized the way we do pretty much everything, often for the better – it’s important to have a clear understanding of how to protect your data; especially for corporations.

In the same way that digital evidence catching criminals has become old news (Can you believe HBO’s The Wire is over ten years old?), data breaches with large banks, corporations, and government agencies have also become just another part of the news cycle. That’s why, moving into the new year, Chief Information and Security Officers should  be keeping up to date with the latest strategies in the field.

On December 1st, as part of E-Discovery Day, ACEDS sponsored a free webinar: 5 Critical Cyber Security Updates for Firms and Corporations in 2018, presented by Roy Zur, Cyber Security and Intelligence Expert at Cybint, a BARBRI company.  In this webinar, Roy explores the upcoming security trends for 2018 and what your company should do to prepare for new threats and intrusions.

This webinar gives you an introduction to:

  • Trends in cybercrime and attacks – what you should expect to happen to your firm
  • Dark Web 101 – your confidential information may already be out there
  • Prevention and detection – best practices for minimizing risk
  • Cyber plan – from training and education to planning and preparing
  • Leveraging the intelligence on the Web to proactively approach due diligence, and litigation

In the same way that cybercommerce ushered in a whole new way of conducting business, the cybercrime that comes with it requires a whole new approach to security. With the constantly changing data landscape, it’s important to be on the leading edge.