D.D.C. Ruling on Adequacy of Search by Navy

Today, Judge Dabney Friedrich issued a decision, Carlborg v. Dep't of the Navy, No. 18-cv-1881 (DLF), 2020 U.S. Dist. LEXIS 142543 (D.D.C. Aug. 10, 2020), reviewing whether or not searches of .pst email archives and shared drives were reasonably calculated to lead to the discovery of requested documents. The Court concluded that a 9 page gap in the Bates numbering of an email production could be disregarded because a subsequent search did not turn up any relevant documents omitted from the initial production.

It also ruled that, “the reasonableness of the Navy's search is buttressed by the fact that Carlborg has offered ’no suggestion as to where else‘ the Navy ’might have looked for his records or what other search criteria should have been used.’”, Id at *13 (quoting Peavey v. Holder, 657 F. Supp. 2d 180, 190 (D.D.C. 2009)).

Circuit Court Ruling on PACER Fees

Today, the United States Court of Appeals for the Federal Circuit issued a decision, D.I., 31, National Veterans Legal Services Program v. United States, No. 19-1081 (Fed. Cir. Aug. 6, 2020), upholding a district court ruling that while PACER access fees could be charged under 28 U.S.C. § 1913 which provides for “access to information available through automatic data processing equipment.", the statute should be read narrowly as only authorizing fees for the actual cost of the service.

The Court decided that PACER fees could not be used to cover the cost of most courtroom technology (such as the E-Juror service which provides copies of documents to jurors). "Courtroom Technology funds largely go toward improving the courtroom experience—providing electronic presentations of evidence on flat-screen TVs, for instance—in ways unrelated to providing access to electronic information." Id. at *30-31. However, the cost of digital audio equipment used for recordings of trials and other proceedings can be taken into account for PACER fees.

Maryland Court of Appeals on Social Media Authentication

The Maryland Court of Appeals has ruled that social media authentication should be held to a high standard. In Griffin v. State, 419 Md. 343, 363, 364 (2011), the Maryland Court of Appeals found social media evidence must be shown to have not been subject to hacking or other manipulation.

Circumstantial evidence under the reasonable juror standard is not sufficient. Facts in some cases before the Maryland courts indicate that if a user of a social media account has shared her password with other people courts will find there is not sufficient grounds to authenticate the evidence. However, courts have also excepted evidence in situations in which detectives also made use of special software in order to confirm the identity of a person making social media posts.

In Griffin, Maryland Court of Appeals set up a three-factor test:

1. Did the purported user acknowledge that they created the post?

2. Does analysis of the computer show that a user of the computer made the post?

3. Has the social networking site been able to confirm that a particular user made a particular post?

If any one of these three points is confirmed the social media evidence will be authenticated.