By Jim Gill
From the beginning, e-discovery has mainly been the realm of corporate legal teams leveraging their knowledge of the e-discovery process along with technology to reach a “just and speedy” resolution to the matter as laid out by Rule 1 of the Federal Rules of Civil Procedure. Recently, I’ve been writing about examples of e-discovery showing up more and more in criminal courts (Visibility is a Trap; I Now Call Alexa to the Stand), and the lessons that can be learned from civil law.
But what about government investigations?
The most recent example of this is the Alabama House Judiciary Committee’s and investigation into Governor Robert Bentley’s use of state resources to conduct and carry out an affair with his chief adviser, Rebekah Caldwell Mason.
The Judiciary Committee released a 130 page report on the investigation, which offers amazing insight into the e-discovery process and the need for having an orchestrated and repeatable approach when it comes to the preservation, collection, and production of Electronically Stored Information (ESI), whether it’s requested in civil litigation, the criminal court, or a government investigation.
Preservation Letters, Document Requests, and Failures to Comply
In the report, it shows the process the Committee went through to get relevant information related to the investigation. First, Preservation Letters (i.e. Legal Hold) were sent to individuals and entities “to make certain that no evidence was lost, inadvertently or otherwise.” They requested specific materials and included instructions for preservation.
After a month, the Committee, hoping to “proceed in a cooperative, voluntary fashion,” sent document requests, asking for a response within 21 days. In the end, 15 people or entities declined to provide documents or interviews, including Governor Bentley and Ms. Mason, and subpoenas were sent requesting documents, interviews under oath, or both.
And while Governor Bentley did eventually produce 12,000+ pages, none of them were responsive to 20 of the requests made in the subpoena, and many others were heavily, and sometimes arbitrarily, redacted (blacked out) with no redaction logs provided.
New Data Types
Another thing that often comes up when discussing e-discovery is new data types, particularly text messages and social media. In the Bentley investigation, this issue is again prevalent, particularly with the inability to collect the requested data.
One example of this is a request for Governor Bentley’s calendar in native electronic format. Instead, Governor Bentley produced photocopies of scanned calendar documents printed days after the reflected date, which was completely unacceptable to the Committee.
As one might imagine, email was a large format for the data requested. As was stated before, when produced, many of them were heavily redacted; other times, the existence of requested email accounts was outright denied, even though they clearly were real as shown by other sources; finally, some requests were simply not produced with no explanation.
In a final glaring example of the need for users to understand how data is created and preserved across multiple platforms, the affair was first discovered by the Governor Bentley’s family because he was unaware that a state-issued iPad he had given to his wife was logged into the same iCloud account that he was using to text Ms. Mason.
In civil court, FRCP Rule 37 lays down the outline for the reasonable steps that must be taken in order to preserve data, and recent case law (such as First Financial Security, Inc. v. Freedom Equity Group, N.D. Cal October 7, 2016) continues to define the ambiguity around what falls under “intent to deprive.” Following these guidelines, Governor Bentley seems to have avoided any attempt for reasonableness when it came to the preservation and production of ESI.
“Overly Broad and Unduly Burdensome”
In the civil court, FRCP Rule 26 covers the idea of proportionality when it comes to discovery requests. But recent case law (like Solo v. United Parcel Services Co. E.D. Mich. January 10, 2017) shows that a general objection stating the request is “overly broad and unduly burdensome” is no longer enough. In Solo v. UPS, the defendant used research and metrics to prove their proportionality argument and to minimize the scope of discovery. The exact opposite happened with Governor Bentley and the Judiciary Committee.
When the Committee requested visitor logs to the Governor’s Mansion and Wynfield Estates related to Ms. Mason’s visits, Governor Bentley claimed the request was, “overly broad, unduly burdensome, and harassing.” However, all that was needed to fulfill the State’s request was a simple electronic search of the visitor’s logs.
Again and again, successful legal teams have shown that the best way to avoid being caught off guard is having a plan. Understand your data. Optimize your process. Track each step along the way. Without these things, arriving at the desired outcome of your dispute might prove more difficult than you thought. Just ask former Governor Bentley.
Download Exterro’s E-Discovery Action Plan which includes checklists, guides, and best practices for the entire E-Discovery process, which will give your legal team an edge when time is against you.