Electronic Discovery and Digital Evidence in a Nutshell - Chapter X Outline

Here's another installment of my outline of Electronic Discovery and Digital Evidence in a Nutshell, the second edition of the West Academic guide to electronic discovery law in the United States authored by Judge Shira Scheindlin (the judge in the Zubulake v. UBS Warburg) and members of the Sedona Conference. An outline of the previous chapter was posted on March 10, 2017.

CHAPTER X – ELECTRONIC DISCOVERY IN CRIMINAL CASES Fed. R. Crim. P. 16 and Brady v. Maryland (1963) require the government to disclose exculpatory evidence to defendants or impeach the prosecution witnesses.

A. COLLECTION OF ESI BY LAW ENFORCEMENT

a. Surveillance and Warrantless Searches of ESI i. Riley v. California (2014) – search incident to arrest, re: cell phones. Officers must secure a warrant before searching a phone. Remote wiping or geofencing (programmed to delete data when moved outside a certain area) can be prevented by disconnecting from a network or removing a battery. Prevent remote encryption by placing in Faraday bag. Court emphasized the range of data that can be stored on a smart phone in considering such a search unreasonable. ii. City of Ontario v. Quon (2010) – okay for government to search pager with text allotment given to police officer – search necessary for a work related purpose. Not the case that only the least intrusive search should be permitted. iii. United States v. Jones (2012) – GPS device attached to a suspect’s car – placing the device on the car constituted a trespass and thus was an illegal search under the Fourth Amendment. Sotomayor concurrence – GPS monitoring makes available at low cost a high amount of information so as to alter the relationship between citizen and government in a way that is inimical to democratic society. Questions appropriateness of use of such a tool without oversight from a coordinate branch and reconsider the premise that an individual has no reasonable expectation of privacy in information disclosed to third parties in age where so much data is disclosed to cellular providers, etc. iv. Courts seldom recognize the voluntary privacy settings on a social media application as establishing a reasonable expectation of privacy.

b. Search and Seizure of ESI Pursuant to a Warrant i. U.S. v. Comprehensive Drug Testing (9th Cir. 2010) – 1. Government has obligation to cull evidence down to bounds of Fourth Amendment authorization. 2. Fed. R. Crim. P. 41(g) – obligation to return evidence outside scope of 4th amendment authorization. 3. Can’t apply plain view doctrine to ESI search. ii. U.S. v. Richards (6th Cir. 2011) - a requirement of reasonable particularity will not shield most information stored in a computer from inspection, where police have probable cause to believe that incriminating evidence is somewhere on the hard drive.

B. FIFTH AMENDMENT PROTECTIONS AGAINST SELF-INCRIMINATION

a. Hubbell v. U.S. (2000) – person may be required to produce certain documents event if they are incriminating because the creation of those documents was not compelled within the meaning of the privilege against self-incrimination.

b. Comm. of Va. v. Baust (Va. Cir. 2014) – defendant could not be compelled to produce password he had memorized but could be compelled to produce fingerprint that would provide access to a cell phone.

C. PRESERVATION OBLIGATION AND PRE-TRIAL DISCOVERY

a. General Obligation of Discovery Under Rule 16 and the Jencks Act i. Fed. R. Crim. P. 16(a)(1) – government must disclose as a matter of right upon request: 1. Oral statements at interrogation 2. Written or recorded statements in the custody of government 3. Statements of agents attributable to an organization. 4. Defendants’ prior criminal record 5. Documents that are material to defense 6. Reports of physical, mental and scientific tests material to defense 7. Summary of expert witness testimony ii. Jencks Act – defines statements of government witnesses as those that reproduce exact words verbatim. iii. U.S. v. Warshak (6th Cir. 2010) – federal civil rule requiring data to be turned over in a searchable form is not applicable to criminal cases. iv. U.S. v. Graham (S.D. Ohio 2008) – sheer volume of data produced by the government, combined with erratic method of turning it over, prejudiced defendants by delay necessary to review all of the material. Indictment dismissed on the basis of the Speedy Trial Act.

b. Constitutional Duty to Provide Exculpatory and Impeachment Material Under Brady i. Brady v. Maryland (1963) – prosecutor must disclose all exculpatory evidence. ii. U.S. v. Skilling (5th Cir. 2009) – government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence, but there would be a Brady violation if government did a document dump in attempt to hide exculpatory evidence, but this not applicable with ESI.

c. Trigger of the Duty to Preserve by the Government and the Defendant i. Cal. v. Trombetta (1984) – duty to preserve limited to evidence that is to play a role in a defendant’s defense. ii. Ariz. v. Youngblood (1988) – defendant must show bad faith on part of police when failure to preserve, or no denial of due process. iii. Sarbanes-Oxley Act 18 U.S.C. 1519 – criminalizes destruction of relevant evidence by defendants. iv. U.S. v. Atkinson (11th Cir. 2013) – conviction under 18 U.S.C. 1519 – for deletion of digital video footage. v. U.S. v. Katskis (E.D. Cal. 2014) – section 1519 covered the deletion of emails. vi. U.S. v. Kernell (E.D. Tenn. 2010) section 1519 covers the deletion of personal ESI.

d. Management of ESI Leading Up to Trial i. Joint Electronic Technology Group – (includes DOJ) – basic principles: 1. Lawyers must have an adequate understanding of e-discovery. 2. Parties should include experts on with technical knowledge to assist with resolving ESI disuptes. 3. Parties should meet and confer on the nature, volume and mechanics of producing ESI. 4. Parties should discuss what formats should be used for production 5. Party should not be required to take on expensive conversion techniques. 6. After the meet and confer parties should notify the court of ESI discovery production issues. 7. Discuss ESI discovery transmission methods and media. 8. Multiple defendants should appoint one to act as discovery coordinator. 9. Consult with supervisor on discovery disputes before consulting judicial resolution. 10. Limit dissemination of ESI to members of litigation team. ii. Consult the JETWG E-Discovery Checklist. iii. United States v. Hernandez (S.D.N.Y. 2014) – court refused to appoint a Coordinating Discovery Attorney – because eight defendants were not similarly situated. Non-attorney vendor might be preferable.

Electronic Discovery and Digital Evidence in a Nutshell - Chapter IX Outline

Here's another installment of my outline of Electronic Discovery and Digital Evidence in a Nutshell, the second edition of the West Academic guide to electronic discovery law in the United States authored by Judge Shira Scheindlin (the judge in the Zubulake v. UBS Warburg) and members of the Sedona Conference. An outline of the previous chapter was posted on February 19, 2017.

CHAPTER IX. ETHICAL ISSUES IN E-DISCOVERY

A. 2012 AMENDMENTS TO THE ABA MODEL RULES OF PROFESSIONAL RESPONSIBILITY

a. Duty of Technological Competence i. ABA Model Rule 1.1. – lawyer shall provide competent representation to a client. 1. Comment 8 – to must keep abreast of all changes in law and its practice, including the benefits and risks associated with relevant technology. ii. 12 states have adopted the commentary language of Rule 1.1. iii. 2014 – Standing Committee on Professional Responsibility and Conduct of the State Bar of California – duty of competency in connection with e-discovery. iv. June 2015 – California Standing Committee – attorney may need to seek assistance on some cases. Lack of competence in e-discovery issues may lead to an ethical violation of duty of confidentiality.

b. Duty of Confidentiality i. Model Rule 1.6 - lawyer shall take reasonable steps to avoid the inadvertent disclosure of information relating to the representation of the client. ii. Comment 18 – No ethical violation if reasonable steps to prevent access or disclosure. Factors to determine if reasonable: 1. Sensitivity of information 2. Likelihood of disclosure in absence of safeguards. 3. Cost of additional safeguards. 4. Difficulty of implementing safeguards 5. Effect of the safeguard on the ability of the attorney to represent the client.

B. RESPECTING THE RIGHTS OF THIRD PARTIES – INADVERENT PRODUCTION a. Rule 4.4 – Respect for Rights of Third Persons – must promptly notify sender upon the receipt of inadvertently disclosed ESI. Includes metadata.

C. DUTY OF SUPERVISION a. Rule 5.3 – Responsibilities Regarding Nonlawyer Assistance – Comments 3 and 4 re: litigation support vendors. b. Comment 3 – Must give clear instructions to assure nonlawyer’s conduct is compatible with professional obligations. c. Comment 4 – Lawyer and client must have an agreement on how to monitor the vendor. D. DUTY OF CANDOR a. ABA Model Rule 3.3 – Candor Toward the Tribunal i. Shall not knowingly make a false statement ii. Must take remedial measures if client is engaged in criminal or fraudulent conduct. iii. Duties apply even if compliance requires disclosure of information protected by Rule 1.6.\

b. Waste Mgmt. of Washington v. Kattler (6th Cir. 2015) – attorney not held responsible for client misconduct if not aware of it, did not assist, or moved to correct deception ASAP.

c. In re Actos Prods. Liab. Litig. (W.D. La. 2014) – adverse inverse instruction to jury for violation of duty of candor resulted in award of $9B.

E. DUTY OF FAIRNESS

a. Introduction i. ABA Model Rule 3.4 – lawyer shall not (or counsel other to) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. ii. Rule 8.4 – professional misconduct to engage in conduct that is prejudicial to the administration of justice. iii. Rule 26(f) lawyer must understand client storage systems so he can participate in the conference. iv. Branhaven v. BeefTek (D. Md. 2013) – failure to identify and produce email in timely fashion and in an acceptable form while misleading defendants that it had identified documents is sanctionable.

b. Electronic Discovery Search Terms i. Apple v. Samsung (N.D. Cal. 2013) – search terms must be produced because they are facts about discovery and therefore not protected.

c. Litigation Hold Letters i. Majority of courts have found that they do not have to be produced.

d. Candor to the Court Regarding the Vulnerability of Electronic Discovery i. In re Intel (D. Del. 2008) – attorney disclosed client’s failure to comply with hold to the court and adversary. Court ordered Intel to produce information regarding the scope of and cause of destruction, whether it was deliberate, and if backup copies existed.

e. Metadata i. Ethical Concerns for the Producing Attorney 1. Comment 19 – lawyer not required to use special security measures if method of communication involves a reasonable expectation of privacy. Greater measures may be required if sensitive information or privacy protected by law. 2. Oregon Formal Opinion 2011-187 – lawyer has duty to use reasonable care to not reveal confidential information through metadata. 3. ABA Formal Opinion 06-442 – Review and Use of Metadata – computers users should avoid creating metadata in the first place; scrub embedded information before sending. ii. Attorneys Duties with Respect to Discovery 1. Common law obligations an attorney to preserve relevant evidence. 2. D.C. Ethics Opinion 341 (2007) – impermissible to alter documents that constitute tangible evidence, removal of metadata may be prohibited. 3. Williams v. Sprint (D. Kan. 2005) – electronic documents must be produced with metadata intact, unless there is a timely objection. 4. Wyeth v. Impax (D. Del. 2006) – presumption against the production of metadata, unless a party can establish that it is relevant. iii. Ethical Concerns for the Receiving Attorney 1. Does mining metadata violate an attorney’s ethical obligations, or is it required? a. New York State Bar Committee on Professional Ethics Opinion 749 – unethical to mine metadata -may be protected by attorney client privilege or work product. b. ABA Opinion 06-442 – Model Rules do not prohibit an attorney from mining metadata. Rule 4.4(b) is silent on this issue. c. State bar associations are split. d. Hybrid decisions – i. Pennsylvania Bar – duties with respect to mining metadata must be evaluated on a case by case basis.

F. DUTY OF SUPERVISION

a. Obligations of Counsel i. In order to meet preservation obligations, counsel should: 1. Inform client of duty to preserve 2. Inform that duty encompasses all documents relevant to the dispute. 3. Documents include hard copies and ESI, as well as drafts. ii. Metro Opera v. Local 100 (S.D.N.Y. 2003) – court issued default judgment and awarded sanctions where counsel: 1. No instructions to client on discovery obligations 2. Knew client had no retention systems but never implemented a systematic procedure for retention. 3. Delegated production to a lay person who did not understand that a document included a draft or non-identical copy. 4. Didn’t confirm lay person implemented effective system to respond to discovery requests. 5. Made baseless representations that all documents had been produced.

b. Managing the Client Lawyer Relationship i. Qualcomm v. Broadcom (S.D. Cal. 2008) – if supervising attorneys unable to get Qualcomm to conduct competent and thorough search should have taken other action to ensure production, or withdrawn from case. Referred to state bar for possible disciplinary action. Later reversed because of lack of bad faith.

c. Supervising Lawyers and Subordinates i. In Qualcomm obligation to disclose documents contradicting trial arguments. Knowledge may be imputed from client to counsel, and from partner to associate whether or not it’s actually communicated.

G. SEDONA CONFERENCE COOPERATION PROCLAMATION

a. 2008 proclamation – dual obligation: i. Conduct discovery in a diligent and candid manner. ii. Be zealous advocates for their clients.

b. Cooperation does not conflict with advancement of client’s interests, but enhances them.

c. 1983 Model Rules switch from ‘zealous advocacy’ to ‘diligent representation’.

d. Mancia v. Mayflower (D. Md. 2008) – Sedona Cooperation Proclamation cited for the proposition that cooperation is a professional obligation. Parties ordered to meet and confer and draft budget proportional to the issues in the case.

H. ETHICAL ISSUES IN DISCOVERY FROM SOCIAL MEDIA SOURCES

a. 2014 New York State Bar Association Social Media Ethics Guidelines i. Viewing Public Portion of a Social Media Site 1. Some sites indicate who is visiting the site. ii. Contacting an Unrepresented Party to View a Restricted Social Media Site 1. Can’t create a false profile to do this. iii. Viewing a Represented Party’s Social Media Site 1. Must obtain an express authorization. iv. Lawyer’s Use of Agents to Contact a Represented Party 1. Can’t have agent do conduct that would violate an attorney’s ethical rules.

b. Lester v. Allied Concrete (Va. Cir. Ct. 2011) – plaintiff suing for the wrongful death of his wife removed photos, at attorney’s instruction, of himself posted to his Facebook page wearing a tee shirt that read, “ I [heart] Hot Moms” and partying with women. Court imposed adverse inference instruction, and fined client and counsel. Attorney suspended from bar for five years.

c. In re McCool (La. 2015) – attorney disbarred for online campaign to influence child custody litigations that encouraged people to contact judges.

Can government agencies share copies of a defendants' cell phone?

The United States District Court for the District of South Dakota issued a decision last week granting a defendant's motion to suppress evidence obtained from the defendant's iPhone. In United States v. Hulscher, 4:16-cr-40070-01-KES (Feb. 17, 2017 D.S.D.), Judge Karen Schreier held that evidence obtained from "a complete, unsegregated copy" of the defendant's iPhone could not be introduced by the Government after the Bureau of Alcohol, Tobacco & Firearms obtained a copy from a local police department that had seized the phone pursuant to a valid search warrant in an investigation related to illegal drugs. The separate federal action concerned the theft and illegal possession of firearms by Mr. Hulscher. The court noted the U.S. Supreme Court's holding in Riley v. California, 134 S. Ct. 2473 (2014), that cell phone data is not the same as physical evidence. There cannot be a mass retention of unresponsive data from a smart phone. The local police department had created a separate copy limited to evidence related to the drug charges.

The court held that the ATF agent was not relying in good faith on the warrant obtained by the local police because he was aware of its parameters, and the plain view exception does not apply with respect to the unresponsive data copied from the iPhone, because there was no justification for the search in the first place. The court did not rule on whether the plain view doctrine applies to digital searches.