D.S.C.: Fact Summaries Withheld Despite Faulty Metadata Review

In January 2019, Special Master William L. Howard issued a report and recommendation, Wellin v. Wellin, No. 2:13-CV-1831-DCN, No. 2:13-CV-3595-DCN; No. 2:14-CV-4067-DCN, 2019 U.S. Dist. LEXIS 20940 (D.S.C. Jan. 15, 2019), on the motion of Wendy Wellin to compel the production of fact summaries, or in the alternative make a supplement to the privilege log.

Earlier the Special Master had recommended that the privilege log of the Wellin children be supplemented to identify the subject matter of factual summaries created in anticipation of litigation, and the author and recipient of each summary. The Court had initially ordered the production of some factual summaries, since they were not prepared in anticipation of litigation, but were used to record memories of the children with respect to certain transactions. After this production counsel for the Wellin children located additional factual summaries in its database, which were similar, but not identical to the summaries which had already been produced. When de-duping the newly found summaries, the metadata of the summaries was not compared and a word by word electronic comparison was not made of the summaries. Their review of the newly found summaries also led them to conclude that values in their 'Creation Date' field were inaccurate. Twenty-two factual summaries were added to the privilege log, since their review concluded that they were created before a particular date, after which the Court determined any summaries should be regarded as work product.

Despite the Wellin Children's confusion about how to analyze the summaries and the unreliable metadata, the Special Master accepted evidence in an ex parte letter from their counsel that each summary was prepared before the 'work product deadline'.

Special Master Howard also concluded that Wendy Wellin did not have a substantial need for the summaries because she was able to take the depositions of the authors of the work product in question.

This case produced an earlier decision of note in 2014, when the Court concluded that non-parties had to produce native files with metadata, after failing to timely object to doing so.

The Speedy Trial Act and Electronic Discovery

This week, Magistrate Judge Debra C. Poplin issued a decision, United States v. Babenco, No. 3:19-CR-60-TAV-DCP, 2019 U.S. Dist. LEXIS 204972 (E.D. Tenn. Nov. 26, 2019), granting the Defendant's motion to continue the April 2020 trial date in order to allow it time to review a voluminous electronic discovery. The production is comprised of 67,000 files of medical record data that totaled 135 GBs. Defense counsel stated that the files were in a format that was difficult to review. The Government acknowledged the difficulty of the review, and did not oppose the motion. The Government alleges that the Defendants in this case, who are medical professionals, distributed controlled substances for illegitimate purposes.

The case was previously classified as a complex trial under the Speedy Trial Act. With such a complex trial it is unreasonable for a court to expect parties to be prepared for a trial within the limits set by the Act, which requires trial dates to be set 70 days from the filing date if the Defendant pleads not guilty. In setting a motion for a new trial date in September 2020, Judge Poplin noted that, "Counsel have related that the electronic discovery is not easily searchable and difficult to navigate. The Court also observes that the nature of the case, which involves allegations that medical providers issued prescriptions without a legitimate medical purpose, will likely require the use of medical experts and additional research and investigation beyond that customary in the typical drug-trafficking case. " Id. at *5.

Pen/Trap Statute: Legal Basis for Collecting Email Metadata

The government can apply for a court order to collect phone numbers and caller ID info under the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, when the information may be used for an ongoing criminal investigation. The court does not conduct an independent inquiry. District court rulings have found that this statute can apply to communications across computer networks.

A pen register is a device or process that can record numbers made from a phone, while a trap and trace device records numbers and caller ID sent to a phone. According to the Department of Justice's Computer Crime and Intellectual Property Section Criminal Division's manual, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, "Because Internet headers contain both 'to' and 'from' information, a device that reads the entire header (minus the subject line in the case of email headers) is both a pen register and a trap and trace device, and it is commonly referred to as a pen/trap device." Mobile phones, email accounts, IP addresses, and internet user accounts are covered by the Pen/Trap statute.

An order issued under the Pen/Trap statute can trace communications made through multiple computers that are used in order to transmit data between a victim and a criminal.

An applicant does not need to state specifically what kind of communication information they are seeking, and courts are split over whether an order should specify what types of data (such email subject fields) should not be collected.

18 U.S.C. § 3121 requires that the government use all available technology to avoid collecting the content of communications. The government cannot use any content that it does collect. The courts are also split on whether or not pen/trap devices cannot be used at all if they do collect such content.

'Post-cut-through dialed digits' can be considered content. These are numbers entered after a phone call is connected, such as the password for a voicemail system.