S.D.N.Y. Denies a Quick Peek

Yesterday on May 10, 2018, Magistrate Judge Katharine Parker issued a decision in Winfield v. City of New York, 15-cv-05236 (LTS) (KHP) 2018 U.S. Dist. LEXIS 79281 (S.D.N.Y. May 10, 2018) denying the plaintiffs' motion for a quick peek at 3,300 documents on the defendant's privilege log. This is the same case discussed in the Tip of the Night for November 28, 2017 which described a decision denying the plaintiffs' motion for the disclosure of information on the plaintiff's TAR system.

The court had previously ordered the City to review a sample set of 80 privileged documents, after which it decided that only 27 of the 80 should still be considered privileged. In her decision, Judge Parker quotes The Sedona Conference Commentary on Protection of Privileged ESI which states that, "Rule 502(d) does not authorize a court to require parties to engage in 'quick peek' and 'make available' productions and should not be used directly or indirectly to do so." Id. at 12. She disagreed with the decision of the United States Court of Federal Claims in Fairholme Funds, Inc. v. United States, 134 Fed. Cl. 680 (2017). in which the court ordered privileged documents to be turned over to the opposing party for a 'quick peek'. Fairholme concluded that the court had the authority to issue a mandatory quick peek order. Judge Parker noted that FRCP 26(b)(1) limits discoverable information to nonprivileged information. Privileged information can only be discoverable if there is a waiver, a voluntary disclosure, or an exception. Federal Rule of Evidence 502 authorizes a court to protect privilege, but does not abrogate common law privileges. "[T[he court is precluded from interpreting the Federal Rules of Civil Procedure and the Federal Rules of Evidence in a manner that infringes on a substantive right, including privilege rights, as such rules may not by statute abridge substantive rights." Id. at 18.

Judge Parker also criticized the court in Fairholme for justifying the quick peek order on the basis of its own lack of time and resources to review the documents in camera. She noted that FRCP 53 allows for the appointment of a special master, and the Advisory Committee Notes for this rule specify that the special master can review documents for privilege.

Judge Parker also distinguished this case from Summerville v. Moran, No. 14-cv-02099 (WTL) (TAB), 2016 WL 233627 (S.D. Ind. Jan.20, 2016), in which a quick peek was ordered where a privilege log was inadequate, and only a small portion of the privileged documents were to be disclosed for the quick peek.

Judge Parker ordered the appointment of Frank Maas of JAMS, a former magistrate judge, as a special master to review the privileged documents, and instructed the plaintiffs to try to narrow the number of documents to be reviewed.

Fourth Circuit Rules on Forensic Analysis of Smartphones Seized at the Border

Today in United States v. Kolsuz , No. 16-4687, 2018 U.S. App. LEXIS 12147 (4th Cir. May 9, 2018), Judge Pamela Harris of the United States Court of Appeals affirmed a district court decision denying the motion of a defendant to suppress a 900 page report on a forensic analysis of a smartphone. The smartphone was seized from a Turkish national detained at Dulles airport in D.C. who attempted to board a flight while carrying a firearm. The Fourth Circuit agreed with the lower court that the analysis of the phone constituted a border search. The defendant cited the Supreme Court decision, Riley v. California, 134 S. Ct. 2473 (2014), (which held that a search incident to a lawful arrest does not allow for a search of a cell phone) for its position that probable cause, not just reasonable suspicion, is required for a forensic search of cell phone. Judge Harris ruled that custom agents justifiably relied on precedent that no warrant was required, and so declined to rule on whether or not a warrant based on probable cause was required in case like this. She did find that the forensic analysis was a non-routine border search requiring individualized suspicion.

The defendant had an iPhone 6 Plus, that was not password protected. A manual search was first conducted of text messages and phone calls. After Kolsuz was arrested a forensic analysis of the phone was performed at a Homeland Security facility miles from the airport. Judge Harris noted that the manual search of the phone could not have been contested by the defendant, and in fact was not. She compared such a search to a check of a traveler's luggage. She distinguished between basic and advanced searches: "'Basic' searches (like those we term 'manual') are examinations of an electronic device that do not entail the use of external equipment or software and may be conducted without suspicion. 'Advanced' searches (like 'forensic' searches) involve the connection of external equipment to a device - such as the Cellebrite Physical Analyzer used on Kolsuz's phone - in order to review, copy, or analyze its contents . . ." Id. at 30-31.

While Cellebrite Physical Analyzer was used to analyze the phone, it was kept in airplane mode so that it could not access cloud data. The report, which took a month to generate, included a log of the precise GPS coordinates of the phone. Judge Harris ruled that a forensic search at a later time, or in a different physical location, can still come under the border search exception, and "[b]ecause the forensic search of Kolsuz's phone was conducted at least in part to uncover information about an ongoing transnational crime . . . it 'fits within the core of the rationale' underlying the border search exception. " Kolsuz, 2018 U.S. App. LEXIS 12147, at *23.

Individualized suspicion is required for a forensic search because, "[t]he sheer quantity of data stored on smartphones and other digital devices dwarfs the amount of personal information that can be carried over a border - and thus subjected to a routine border search- in luggage or a car." Id. at 25. Judge Harris noted that it is not reasonable to expect a traveler to leave their smartphones at home when they travel.

In a concurrence, Judge Wilkinson criticized the majority opinion for holding that individualized suspicion is required for non-routine border search. He asserted that it is the role of Congress, not the courts to set such a standard.

District of Utah Orders Production of Client Relations Management Database

On May 4, 2018 in Entrata, Inc. v. Yardi Sys., No. 15-cv-00102-CW-PMW, 2018 U.S. Dist. LEXIS 76148 (D. Utah) Magistrate Judge Paul Warner granted the pkaintiff’s motion for production of the Yardi client relations management database. The court rejected the defendant’s position that reports generated by the database satisfy its obligations under FRCP 34.

The production of the data was proportional to the needs as the case as per the requirements of FRCP 26(b). Judge Warner cited the Advisory Committee’s notes to FRCP 34 which state that not all discoverable ESI fits within the concept of a traditional document, specifically mentioning dynamic databases.

Entrata also sought the re-production of documents that the defendant clawed back arguing that it had not done so in a reasonable period of time. The court rejected this motion. “While Entrata obviously takes issue with the number of days that Yardi waited to claw back the documents, the court cannot say, and Entrata has failed to demonstrate, that Yardi did not act within a reasonable time after discovering that the documents were inadvertently or unintentionally produced.” Id. at 9. A motion for an in camera review by a special master of all documents withheld for privilege on the basis of one improperly withheld email, additional documents only allegedly improperly withheld , and the sheer number of documents on the log was also denied.