Northern District of California - Privilege Log Not Too Burdensome If No Meet & Confer

On Wednesday, Judge Donna Ryu issued a decision in Porter v. City & County of San Francisco, No. 16-cv-03771-CW (DMR), 2018 U.S. Dist. LEXIS 151349 (N.D. Cal. Sept. 5, 2018) granting the Plaintiff's motion for spoliation sanctions and the Plaintiff's motion for production of documents based on the failure to submit a privilege log. This case concerns a wrong death action brought against a hospital in San Francisco. A hospital staff member lost track of a psychiatric patient while she was being brought to a different building for treatment. A nurse named Mark Okupnik reported the missing patient to the police. The defendants failed to produce an audio recording of a call made by a nurse to the San Francisco Sheriff's Department about the patient's disappearance. They stated that it had been erased pursuant to their retention policy.

The Defendants argued that they should not be sanctioned because they had not intentionally erased the call, and because no prejudice resulted to Porter. While FRCP 37(e) does not define intent, Judge Ryu acknowledged other decisions which showed that the intent requirement is satisfied when, "a party purposefully destroyed evidence to avoid its litigation obligations." Id. at *8.

The Court ruled that spoliation had occurred for the following reason:

1. The recording was erased in 2017, after the claim was filed in 2015 which triggered a duty to preserve.

2. The Defendants did not take reasonable steps to preserve the recording.

3. The recording could not be restored or replaced.

Judge Ryu's opinion states that, "The Okupnik call is the only contemporaneous record of what information was reported to the SFSD about Nuriddin's disappearance,and could contain facts not otherwise known about her disappearance and CCSF's response. Additionally, the call is relevant to a jury's assessment of Okupnik's credibility. Okupnik was acting within the scope of his employment with CCSF when he made the call to SFSD about Nuriddin's disappearance. A jury could find Okupnik more or less credible based on what he said and how he sounded during the call." Id. at *11.

The Court declined to issue an adverse inference instruction because the evidence was not deleted intentionally. It did however order that the jury be read a statement addressing the spoliation of evidence and noting that while the defendants had a duty to preserve the call they failed to do so.

The defendants based their failure to produce a privilege log on the fact that the requests for production were overboard and would make the preparation of the log burdensome.

The Court noted case law stating that privilege can be waived if a log is not produced. The Ninth Circuit has rejected a per se waiver rule in favor of a case by case determination weighing the extent to which the basis for withholding privilege can be determined; the timeliness of the objection; the size of the document production; and the difficulty of responding to discovery. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1148-49 (9th Cir. 2005). Judge Ryu ruled that each factor weighs in favor of waiver. The defendant only made boilerplate objections . The Court rejected the contention that the RFPs were overboard and made discovery burdensome, because the Defendants failed to meet and confer to narrow their scope, and because they should have responded to those RFPs which were valid and submitted privilege logs for just those sections.

The Court noted the Defendant's prior failure to respond to request for a privilege log, and ordered production with the exclusion of communications with counsel that took place after the complaint was filed.

Utah State Appellate Court Ruling on the Constructive Possession of Laptop Data

Today, in State v. Jordan, No. 20160439-CA, 2018 Utah App. LEXIS 182 (Utah Ct. App. Aug. 31, 2018), Judge Ryan M. Harris of the Court of Appeals of Utah (the intermediate appellate court in that state) affirmed the appellant's conviction for child abuse, possession of child pornography, and witness tampering.

The opinion addresses a motion under Rule 23B of the Utah Rules of Appellate Procedure to remand the case to the trial court so it can make evidentiary findings with respect to the appellant's lawyer providing ineffective assistance of counsel. Jordan argued that his lawyer failed to show that one of the victims ("Mark") had access to Jordan's laptop computer. The Court noted that when one person has sole access to a computer, they have constructive possession of the images on that computer. When more than one person has access, the burden to establish an inference of constructive possession is greater. Evidence must be presented that an individual exercised dominion and control over the electronic evidence. The appellant submitted an affidavit sworn to by his brother that Mark had gained access to the appellant's laptop by logging in with the required password. Judge Harris ruled that, "This evidence, if true, would tend to support the conclusion that both Mark and Jordan had access to the laptop, which would require the State to meet a more stringent burden in order to prove that Jordan constructively possessed the images." Id. at *21.

Taking into consideration that contraband images found on the laptop did not provide any details about when they were taken, Judge Harris concluded that the Rule 23B motion should be granted because there was no reason for the counsel to have failed to require the State to have met the more stringent burden for constructive possession when more than one person had access to a laptop.

Supreme Court of Vermont: Opening Data Already Identified by Hash Value Not a Fourth Amendment Searc

Last week, Supreme Court issued a decision in State v. Lizotte, 2018 VT 92, affirming a lower court decision holding that AOL did not act as an agent of law enforcement in violation of the defendant's Fourth Amendment rights when it searched his emails for child pornography and reported its findings to the National Center for Missing and Exploited Children (NCMEC).

The AOL terms of services allowed it to access communications of its users if it believed they were being used for criminal purposes. The decision details how AOL uses its Image Detection Filtering Process to generate MD5 hash values for images sent as email attachments. AOL blocks emails sending images that have hash values of known prohibited images; terminates the email accounts; and then preserves the messages for the NCMEC. AOL does not necessarily open and review emails that it forwards to NCMEC.

NCMEC is a private organization, but 70% of its funding comes from the Department of Justice and the Department of Homeland Security. It is required by law to forward reports to law enforcement authorities and does not always actually open the emails it analyzes.

The Supreme Court did rule that NCMEC was functioning as an agent of government when it opened and processed email received from AOL that it then forwarded to law enforcement. The data at issue in this case consists of a video file identified as contraband by its hash value and an email with an attachment. AOL did not open and view the email, but it did view the video file. The opinion states that, "We conclude that NCMEC and law enforcement did not expand the search conducted by AOL when they opened the video file because at sometime prior AOL had already viewed that document and through the hashing technology law enforcement already knew what was contained therein. To the extent that NCMEC or law enforcement opened and viewed the contents of the email itself, we conclude that this was an expansion of the search conducted by AOL. We hold, however, that because the information from the content of the email was not necessary to provide probable cause, this expansion did not invalidate the warrant." Id. at *P18.

In evaluating whether or not AOL was an agent of government, the Court noted that while the law requires AOL to report violations of federal law prohibiting the sexual exploitation of children, it does not require AOL to search internet communications, and when it does so it uses a tool that it did not develop with government assistance. NCMEC was acting as a government agent because it is required by law to forward reports to law enforcement authorities, and its legal obligations anticipate that it will preserve data and search through it.

Under the Fourth Amendment, there is no government search if law enforcement only views evidence in the scope of a private search. In this case, the Court did not need to open the email attachment in question to know it was contraband because the AOL report on its hash value indicated that it was child pornography. Actually opening the attachment did not expand the search performed by AOL. The Court found that, "a hash value is not like a label written on a box; rather, it is a digital fingerprint that conveys that the information in the file is exactly the same as what was previously viewed." Id. at *P31.