2008-02-20 Civil eDiscovery Rules Expressly Applied to Criminal Proceedings

In a decision by Magistrate Judge Facciola of the United States District Court for the District of Columbia, the Court adopts and incorporates many of the 2006 eDiscovery amendments to the Federal Rules of Civil Procedure into criminal discovery proceedings. And granted a motion to compel by the defendant.

Point by point, with excerpts:

1. Application of Fed. R. Civ. P. Rule 34 to Criminal Proceedings and taking the common sense "don't fix if not broken" position:

"In criminal cases, there is unfortunately no rule to which the courts can look for guidance in determining whether the production of documents by the government has been in a form or format that is appropriate...

Be that as it may, Rule 34 of the Federal Rules of Civil Procedure speak specifically to the form of production..

It is foolish to disregard them merely because this is a criminal case, particularly where, as is the case here, it is far better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raises the same problems. "

2. Rule 34(b) and the Form of Production of Production: Judge Facciola speaks first to the 1980 amendments and accompanying commentary, which were intended to prevent what he terms the "juvenile" practice of burying relevant documents by "rearranging" them so as to prevent a party's efficient review and use.

"Under Rule 34(b) of the Federal Rules of Civil Procedure, a party, on whom a demand for production of documents has been made, must produce them in the form in which they are ordinarily maintained or must organize and label them to correspond with the categories of the request for production. Fed. R. Civ. P. 34(b)(2)(E)(i). "

"In eliminating that practice and requiring the producing party to produce the documents in the same way they were kept, the Advisory Committee intended that there would be equality between the parties in their ability to search the documents. "

3. Producing Party Must Produce Documents in a manner which replicates the manner in which they were originally kept.

"Therefore, to reproduce them in the manner in which they were kept would require the producing party to reproduce those file folders and place the appropriate documents in them so that the production replicates the manner in which they were originally kept. If that is not done, federal courts have required the producing party to index the documents to render them usable by the requesting party. See, e.g., Okla. ex rel Edmonson v. Tysons Food, Inc., No. 05CV329(GKF/SAJ), 2007 U.S. Dist. LEXIS 36308, at *16 (N.D. Okla. May 17, 2007) (requiring producing party to create a "complete and fully accurate index . . . showing the box number which responds to each specific Motion to Produce"); Sparton, 77 Fed. Cl. at 16 (criterion is whether the documents are so disorganized that it would be unreasonable for the requesting party to review the documents; producing party may not provide documents in "mass of undifferentiated, unlabeled documents" but must provide them in some "organized, indexed fashion")" [emphasis added]

3. A document-dump with no organization is not acceptable. This has some very important implications in the eDiscovery arena. A document dump, whether paper or electronic, must comport with the requirement of FRCP Rule 34. This decision provides fuel for claims of non-responsive and evasive answers, motions to compel, and consequent orders granting sanctions.

"...In re: Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 363 (N.D. Ill. 2005) (producing party may not dump massive amounts of documents in no logical order on their opponents; undifferentiated production of everything in boxes will not do)."

4. Federal Rules of Evidence - Rule 901 Issues

The court then notes that defendants claimed that the government's production was so haphazard and disorganized as to force them to "guess about the evidentiary value of the documents—i.e., who created a document or on whose computer or in whose file a document was kept." Judge Facciola stated that he would recommend to the District Judge that the latter deem all goverment records produced as authentic.

5. Electronic Production: Defendants here argue that the government failed to: comply with its obligations to both search for requested items; to disclose the means (meaning the software used) to conduct such searches, to disclose how it arrived at the search terms to be used in connection with those searches; to disclose its preservation methodology at both the time of the indictment as well at the time of a prior discovery order.

6. Preservation: The Court likens the government's duty to preserve in a criminal case to the Fed. R. Civ. P. Rule 37 "safe harbor" doctrine, which of course brings with all the attendant Zubulake doctrine cautions:

"The government’s destruction of evidence pursuant to a neutral policy and without any evidence of bad faith does not violate the due process clause if the evidence was destroyed before the defendants raised the possibility that it was exculpatory and the government had no objective reason to believe that it was exculpatory. Arizona v. Youngblood, 488 U.S. 51, 57 (1988); In re: Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996). Accord United States v. Beckstead, 500 F.3d 1154, 1158-62 (10th Cir. 2007); Bower v. Quarterman, 497 F.3d 459, 476-77 (5th Cir. 2007) (exculpatory value of destroyed evidence must be apparent before its destruction)."

"This principle finds its analogue in the Federal Rules of Civil Procedure, which indicate that, absent exceptional circumstances, sanctions will not be awarded for a party’s failure "to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." Fed. R. Civ. P. 37(e)."

7. The Importance of Knowing What to Ask For, Asking for It, and Metadata: Judge Facciola wraps with a great analysis, and repeats his admonitions to the parties to be knowledgeable (and presumably competent) in eDiscovery and digital evidence authentication matters. This seems to resonate with Magistrate Judge Grimm's caution (apparently, to the entire legal arena) in the Lorraine v. Market American case to "get it write the first time."

"As established above, a party is obliged to either produce documents as they are kept in the usual course of business or it "must organize and label them to correspond to the categories in the request." Fed. R. Civ. P. 34(b)(E)(i). But if, as occurred here, electronically-stored information is demanded but the request does not specify a form of production, the responding party must produce the electronically-stored information in the form in which it is ordinarily maintained or in a reasonably usable form or forms. Fed. R. Civ. P. 34(b)(E)(ii). Additionally, a party "need not produce the same electronically stored information in more than one form." Fed. R. Civ. P. 34 (b)(E)(iii) "

The Court then goes on to state that where the form of production is not articulated by the requesting party, the producing part retains discretion on form of production of information "as ordinarily maintained" subject to the challenge that what is produced may not be in reasonably usable or form or forms. Here, the government produced documents in .tiff and .pdf format. That the Court allows for a challenge based on the sufficiency of .pdf or .tiff files as compliant with an electronic document discovery request is, imo, a significant step in the right direction.

"If one were to apply these rules to this case, it appears that the government’s production of the electronically stored information in PDF or TIFF format would suffice, unless defendants can show that those formats are not "reasonably usable" and that the native format, with accompanying metadata, meet the criteria of "reasonably usable" whereas the PDF or TIFF formats do not. "

The government in this case appeared willing to produce documents in native, source format, but the Court did caution the defendants to "get it in writing" by way of stipulation. Once that stipulation is to be obtained by defendants, the Court indicated the government would have a duty to preserve, and that, in the event of its failure to produce, the Court would enforce a subsequent motion to compel the production by the government of electronic information in native format --- with accompanying metadata.

8. Search Terms: In one of the first cases to examine the issue, the Court also provided (and permitted) the filing of motions challenging the sufficiency of search terms, with the big proviso that "they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence."

Especially entertaining comment vis a vis challenging the government discovery responses:

"If you strike at a king, kill him."



The case is U.S v. O'Keefe, et al. Cr. No. 06-249 (PLF/JMF), and the link to the decision is here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cr0249-90

2008-02-18 Source Code Dispute Heats Up (Again) - Florida Attorney Files Motion in Limine

Venice, Florida attorney Robert Harrison is leading the charge against the breath alcohol measuring devices known as "Intoxilyzers." There are two models, the Intoxilzyer 5000 and the Intoxilyzer 8000. Harrison is seeking production of the source code for both appliances; the manufacturer has thus far refused to disclose the code.

Harrison filed a motion in limine requesting relief which includes a subpoena duces tecum for the source code (as well as other unspecified relief) on the basis that "without the Defendant having an opportunity to review and inspect the software source code, would violate the Defendant’s right to due process and right to confrontation..."

Harrison (imo correctly) characterizes the challenged devices as "mystical machines" if not opportunity to examine source code is provided. An important point here is that the printout of the results is the only evidence that is used to accuse, try and convict a driver subject to the test.

Here now, the litany of reliability issues:

Volumetrics Software Flaw

The"Intoxilyzer 8000, as distributed for use in the State of Florida, contained a software flaw that on numerous occasions reported a volume of less than 1.1 liters when there was not a warning flag of “volume not met”, thus rending the reliability of the reported volume unknown." Harrison notes, quite properly (imo) that "[I]f the reliability of the reported volume of a breath sample cannot be ensured, then the reliability of any corresponding breath alcohol level cannot be ensured. "

Multiple, Uncalibrated Software Versions

Harrison argues that there are various versions of the firmware code used to run the Intoxilyzer 8000, that these versions have not been recalibrate or certified to the state, and that it therefore is unknown whether these code modifications or alterations affect the analytical portion of the code, and therefore the reliability of the output.

"According to the manufacturer of the Intoxilyzer 8000, following a software update that modifies the analytical portion of the software, the machine must be recalibrated. The software contained in the Intoxilyzer 8000 used in this case was modified without having the machine recalibrated. Without the Source Code, the Defendant cannot determine whether or not the software update modified the analytical portion of the software, thus requiring the machine to be recalibrated.

Which Code, Which Version, Which Intoxilyzer?

Harrison raises another good point by implication. Even if the source code is provided, how can it be established that the now-modified source code (or any other code, for that matter) is *the* code that was intended to be used by the device? Without some integrity mechanism applied, we are left at best with corroborative (and inherently unreliable) witness testimony or, at worst, a guess.

"The Source Code is material to the Defendant’s case, for with this information the Defendant can determine whether the Intoxilyzer actually used in this case was using a software program approved by 11D-8.003 or a modified version of this program, if a modified version was used, what extent the modification would have on the reliability and operation of the Intoxilyzer, and how the software effects the reliability and operation of the Intoxilyzer.31. Without the production of the Source Code, the reliability of the Intoxilyzer 8000 is unknown."

Link to the pleading here: http://www.harrisonlawoffice.com/sourcecode/pleadings/fabian/Motion%20in%20Limine.pdf

2008-02-10 Ex-Societe Generale Trade Alleged to Have Forged Emails

Not just any emails.

Mssr. Kerviel, the trader who seems to have overstepped his trading position limit authority by some orders of magnitude, is alleged to have forged email confirmations of some significantly sized trades to appear to have come from Deutsche Bank.

I'm shocked, shocked. Well, I am somewhat surprised that for a bank with (heretofore) much vaunted security, something as simple as forged emails involving significant asset impairment risk (such as, say, US 75 billion in impairment) was not subject to some immediate or contemporaneous due diligence.

For a country that is well known for its persnickety attitude in connection with the provenance of its wines and champagne (not sparkling wine, pardner) this may want the bank examiners to reach out for a glass --- of a California Cabernet.

Excerpts from the Business Section of the NY Times 2008-02-10

"Later that afternoon, Mr. Kerviel presented compliance officers with the Deutsche Bank e-mail message. But when Société Générale double-checked, Deutsche Bank would not acknowledge the trade...'[W]e think this is the forged document from Deutsche Bank,' the person said of the confirmation referred to in Mr. Bakir’s message to Mr. Kerviel."