Supreme Court of Wyoming: No Brady Obligation to Search for Buried Data

On Friday, the Supreme Court of Wyoming issued a decision, Byerly v. State, 2019 Wyo. LEXIS 132 (Wyo. Dec. 27, 2019) affirming the lower court's denial of a motion for a new trial for on the basis of the suppression of evidence of data downloads from the victim's iPhone and iPad in an assault and battery case. No Brady violation was demonstrated showing that government had evidence it failed to disclose to the Defendant.

The victim could not remember the password for an iPhone she gave to the local sheriff's office, and the encrypted data on the device could not be accessed. The encrypted data was stored in a .tar file, a mirror image of the phone's encrypted data. Later, a separate download was then performed on the same iPhone, and the iPad, at which time the encryption password was available. With respect to the second set of downloads, the Court concluded that the Government met its obligations by informing defense counsel of the downloads and that a thumb drive with the data had been logged into evidence.

The Plaintiff contended that the Government had an obligation to use the password to access the data in the .tar file created from the first download. In his opinion, Chief Justice Michael K. Davis stated that, "[t]o charge prosecutors with knowledge of exculpatory evidence buried in the computer databases of institutions that collect and store vast amounts of digitized data would be an unreasonable extension of the Brady rule." Id. at *32. However, the Court declined to rule on the Government's Brady obligations with respect to the "unique nature of electronic data" because the parties' brief did not specifically address this issue. Id. at *33.

The Court noted that text messages in the first download about jaw pain suffered by the victim and the timing of event would not have affected the outcome of the trial; texts regarding photos of injuries were included in the second download; and texts regarding the victims visits to bars on the night of the incident were known to the defendant because he was copied on them.

E.D. Pa.: Expert to Study if French Blocking Statute Applies for ESI in NY Relativity Databases

Last Friday, in Behrens v. Arconic, Inc., No. 19-2664, 2019 U.S. Dist. LEXIS 220209 (E.D. Pa. Dec. 20, 2019), an expert was appointed by the Court to study the impact of a French blocking statute that the Defendants rely on to limit discovery from one of its entities. The statute bars communications with a foreign court that would harm the economic or security interests of France. The case concerns cladding sold by a French subsidiary that was used in Grenfell Tower, a building in London where a catastrophic fire occurred.  

The parties’ dispute turns on whether ESI collected by DLA Piper, the Defendants’ counsel in the UK and France, is located in New York because it is in Relativity databases hosted there. The Court cited the Sedona Conference’s Working Group 6 standards on cross border discovery as an important authority guiding its decision. It noted the following principles established by the Sedona Conference: 1. U.S. courts should respect the data protection laws of foreign courts. 2. Where full compliance with both data protection laws and discovery obligations is impossible, a standard of good faith and reasonableness should be applied. 3. Preservation and discovery should be limited to data that is necessary for a party’s claims and defenses in order to avoid a conflict of laws.

M.D. Pa.: Departing from Sedona Produces More Heat Than Light

This month, Magistrate Judge Martin C. Carlson issued a decision, Lawson v. Love's Travel Stops & Country Stories, No. 1:17-CV-1266, 2019 U.S. Dist. LEXIS 219687 (M.D. Pa. Dec. 2, 2019), ordering the Defendant to disclose its search results and directing the parties to conduct additional discovery. Judge Carlson began his decision by listing the 14 tenets of the Sedona Principles for best practices in electronic document productions. He stressed the importance of the use of relevant search terms (or TAR) and sampling in making document review efficient and accurate. "When litigants depart from these Sedona Principles, ESI discovery can often devolve into a dysfunctional process, one which produces more heat and smoke than light. When this occurs, the court must intervene and prescribe cooperative practices for parties that are unable to collaborate on their own." Id. at *6.

The Court blamed the Plaintiffs for not using search terms that were specific enough, and the Defendant for not performing sampling. Independently of one another, the Defendant chose to add its own modifying term to the Plaintiffs' search terms, and the Plaintiffs requested the disclosure of certain percentages of search results obtained using their original search terms. Judge Carlson faulted their lack of cooperation. "The parties' decision to pursue two different and unilateral approaches to resolve this discovery dispute then compounded rather than eliminated these discovery shortcomings." Id. at *18.

Reluctantly, the Court ordered its own resolution of the discovery dispute:

1. The Plaintiffs are to limit their search terms to the 25 most relevant in hit reports prepared by the Defendant.

2. The Defendant is to use these terms to identity a more focused body of data.

3. A statistical random sample is to be selected that both parties can inspect.

4. Additional modifying terms may be added if the sampling indicates they are needed.