Louisiana Appellate Court Upholds Criminal Conviction on Basis of Photo Metadata

This past Wednesday, the Court of Appeal of Louisiana, the intermediate appellate court for the state, issued a decision, State v. Harrell, NO. 18-KA-63, 2018 La. App. LEXIS 2061 (La. Ct. App. Oct. 17, 2018), affirming the decision of a lower court convicting the Defendant for possession of a firearm by a convicted felon. A jury acquitted the Defendant of second degree murder. A forensic analysis was performed on the Defendant's cell phone after it was seized when he was arrested. The metadata for photos of the Defendant holding firearms showed they were taken in December 2013 and January 2014. Metadata was not available for a photo of the Defendant holding a firearm that was sent to him in a text message. The Defendant was convicted in 2004 of possessing marijuana within a thousand feet of playground. The Defendant argued that the State did not prove that one of the photos was taken in the date range they claimed it was.

In reaching the decision that the Defendant possessed a firearm in the applicable time period and had the general intent (simply intended to do the criminal act), the Court relied on the testimony of a detective (a mobile device forensics expert) that photos showing the Defendant holding a firearm, "contained metadata providing for the make and model of the phone which captured the image as well as the capture date and the time the photograph was taken." Id. at *9. The Court rejected the Defendant's argument that firearms were superimposed on the photos, which was not raised at trial, and for which no evidence was submitted in the appellate record to support it.

This is one appellate opinion which is fairly straightforward - at least with regards to upholding the Defendant's conviction for firearms possession. (The Court also reviewed the record for errors patent - with respect to the leniency of the sentence; the designation of the crime as violent on the transcript (it was found not to be); and the date of the offense on the uniform commitment order.) However, it reveals several things of interest with respect to the use of electronic evidence. The police clearly have a strong focus on collecting data from smartphones. A detective served as the mobile forensics expert, not an outside technician. Photos sent via text messages may be stripped of meta data. Even at the appellate level, judges are willing to base a defendant's conviction for an offense one could argue was victimless and non-violent solely on the basis of a photo's metadata. Lavelle 'Big Mike' Harrell was sentenced to 20 years without the possibility of parole, simply because he held a gun, just shy of 10 years after he was caught with weed not in a schoolyard but within 1,000 feet of one. The statute criminalizing the possession of a firearm by a felon includes a cleansing period - it does not apply to anyone who has not been convicted of a felony in the past 10 years. Bike Mike is going to do 20 years hard labor for having a drug half of Americans use regularly without fear, and then doing something half of Americans believe should be an inviolable Constitutional right. Good luck Big Mike!

DOJ Redaction Error in Motion to Conceal

Last year the Second Circuit ruled in United States v. Allen, 2017 WL 3040201 (2d Cir. July 19, 2017) that testimony compelled in a fraud investigation in the United Kingdom cannot be used for a criminal prosecution in the United States. This became an issue during an investigation by the Department of Justice into alleged rigging of the London InterBank Offered Rate by former Deutsche Bank traders Matthew Connolly and Gavin Black. The Department of Justice filed a motion to conceal, the publicly available version of which contained testimony of Mr. Black before UK investigators that was not redacted correctly. Mr. Black sought a Kastigar hearing which would require the DOJ to show that it did not rely on compelled testimony in its investigation. The motion to conceal was filed a by a division at the DOJ other than that which is conducting the LIBOR rigging investigation. The motion to conceal brief itself made the argument that Mr. Black was not entitled to a Kastigar hearing because the investigating attorneys did not have access to the testimony compelled in the UK. The DOJ acknowledged that an error in its redaction process allowed metadata to be manipulated. The case is United States v. Connolly, No.1:16-cr-00370 (S.D.N.Y.) .

E.D. Mich.: Bothersome Subpoena Requests Not Unduly Burdensome

Yesterday, Judge Anthony Patti denied non-party Kotz Sangster Wysocki P.C.'s motion for a reconsideration of the court's order granting the Plaintiff's motion to compel in State Farm Mut. Auto. Ins. Co. v. Elite Health Ctrs., No. 2:16-cv-13040, 2018 U.S. Dist. LEXIS 175024 (E.D. Mich. Oct. 11, 2018). The parties exchanged a list of key search terms and Kotz Sangster offered to review a set of 2,000 responsive non-privileged documents, but State Farm refused to pay Kotz Sangster's legal fees. State Farm contended that it was not obligated to do so since it had taken reasonable steps to avoid imposing undue burden and expenses on Kotz Sangster. It also contended that the crime fraud exception should apply to privilege claims made by Kotz Sangster.

The Court's July 31, 2018 Order found that the non-party failed to establish its objection that there was an undue burden, but also held that State Farm's argument regarding the crime fraud exception was not ripe because it had not requested privileged communications. In order to have a motion for consideration granted the movant must show a palpable defect, and not merely present the same issues.

The Court did not consider a pending motion by Kotz Sangster to file a surreply challenging the basis for the subpoena in addressing the existence of a palpable defect because surreplys are generally disfavored and it is within a court's discretion to deny them. The Court also rejected Kotz Sangster's undue burden argument on the basis of State Farm's allegation that they function contrary to their non-corporate status in participating with the Defendants to a scheme to defraud State Farm. Judge Patti noted that the Fed. R. Civ. P. 45 protects a non-party from expenses incurred in complying with subpoenas by requiring the requesting party to to take reasonable steps to avoid imposing an undue burden. "Here, State Farm does appear to have taken reasonable steps to avoid imposing an undue burden, advising Kotz Sangster that it was not seeking privileged communications at this time and exchanging a list of ESI search terms, which apparently lead to a more limited universe of potentially responsive documents." Id. at *14. The cost of a privilege review is only to be borne by the requesting party when there are unusual circumstances. The opinion states that , ". . it is not unusual for a law firm to be required to supply records relating to incorporation in a commercial case, or for a law firm to have to supply testimony regarding incorporation. Occasionally having to do so is part of the cost of doing business. Kotz Sangster simply has not met its burden to demonstrate a palpable defect." Id. at *16-17.

The Court also acknowledged that the scope of discovery under a subpoena is the same as it is under Fed. R. Civ. P. 26 (b)(1). An attorney cannot simply object that a subpoena is unduly burdensome. An objection must be made on, "first hand knowledge by someone who is actually responsible for keeping the records in the ordinary course of business or for assembling the requested discovery." Id. at 18-19. "The Court recognizes that responding to discovery is generally bothersome, and may indeed be, at least to some extent, burdensome. . . But the fact that it will be either bothersome or burdensome to respond to a discovery request does not necessarily mean that it will be unduly so." Id. at 19. Citing a recent article posted on Law 360, Judge Patti believes that non-parties making an undue burden objection should submit, "detailed cost and time calculations, supported by knowledgeable declarations". Matt Hamilton, Donna Fisher & Sandra Adams, Does Rule 45 Protect Nonparties from Undue Burden, Law 360 (Oct. 2, 2018), http://www.law360.com/appellate/articles/1088653 .