Things to Think About for Your Rule 26(f) Meeting…

In a case management hearing, the parties were directed to consider the following electronically stored information (ESI) issues at their Rule 26(f) conference for drafting their proposed Rule 16(b) order:

With regard to any discoverable electronically stored information (ESI) the parties may have, the Court further requests that the joint discovery plan also include any issues and concerns related to the following:

a. What ESI is available and where it resides;

b. Ease/difficulty and cost of producing information;

c. Schedule and format of production;

d. Preservation of information; and

e. Agreements about privilege or work-product protection.

 Wallace v. Tindall, 2009 U.S. Dist. LEXIS 89669, *2-3 (W.D. Mo. Sept. 29, 2009).

It is good to see Courts ordering parties to consider issues such as whether ESI is reasonably accessible, the form of production, preservation and privilege concerns in case management orders.  While the above order is actually brief on the e-Discovery issues, consider the new California Rules of Court section 3.724(8), which require the following topics to be discussed at the “Meet & “Confer:”

Any issues relating to the discovery of electronically stored information, including:

(A) Issues relating to the preservation of discoverable electronically stored information;

(B) The form or forms in which information will be produced;

(C) The time within which the information will be produced;

(D) The scope of discovery of the information;

(E) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

(F) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

(G) How the cost of production of electronically stored information is to be allocated among the parties;

(H) Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information;

Case management orders such as the above and the new California Rules of Court acknowledge the reality that every case will have electronically stored information of some kind.  Lawyers must deal with these realities early and not wait for them to become problems.

An Email State of Mind: Confessions of an Online Fraudaholic

A Criminal Defendant maintained an online business that was a shame: Orders were made and money paid, but the items ordered were either not sent or non-conforming goods instead.  This is all fun and games for the Defendant until an undercover FBI agent placed orders in a sting operation. 

The Defendant challenged the admission of customer email messages from the trial as they “were hearsay and that their admission was highly prejudicial and violated the spirit of the Confrontation Clause of the Sixth Amendment.”  United States v. Levy, 2009 U.S. App. LEXIS 14163, 8-9 (4th Cir. Va. June 30, 2009).   The Court did not agree.

Background Facts: Online Business Fraud

An online business owner ran two companies selling women’s fashions.  The Defendant served as the victim’s supplier.  Levy, 1-2. Both online businesses failed because of customer’s complaining they did not receive the ordered merchandise and demanded refunds.  Levy, 2-3.

The Defendant set up her own online business, with a laundry list of people not getting what they ordered for several years.  

One person made several attempts to get her merchandise through the Defendant’s website, which cost the Defendant a transaction fee with each attempt.  The Defendant sent the customer fraudulent documents from a make believe law firm that included a falsified complaint, apparently to scare the victim off.  Levy, 3-4.  

An undercover FBI agent placed an order through the Defendant’s website and true to form, did not get what she ordered.  The FBI eventually searched the Defendant’s house after the FBI orders were never shipped. Levy, 4.

The Government introduced into evidence at trial emails collected from the Defendant’s computer.  The emails were exchanges with angry customers and the Defendant’s replies.  Levy, 5.

The Defendant was convicted of three counts of mail fraud and four counts of wire fraud.  Levy, 5-6.  The Court estimated at least eighty-two victims who suffered $ 168,300.77 in damages.  Id. The Defendant was sentenced to 46 months’ imprisonment and pay $ 168,300.77 in restitution. Levy, 1.

The Defendant’s appealed followed.

Email & Hearsay: The Truth of the Matter Asserted

The Defendant challenged the customer email evidence on appeal as 1) hearsay and 2) the evidence was highly prejudicial and violated the 6^th Amendment Confrontation Clause.  Levy, 8-9.

The Court did not agree.  The Court held the email messages were not hearsay, because they were not offered for the truth of the matter asserted.  Levy, 9.

The customer email messages were offered so the Defendant’s party admissions in her email would show the context of the Defendant’s “intent, lack of mistake, and notice.” Levy, 9.

As such, the customer email messages were not hearsay and thusly did not violate the Confrontation Clause.  Levy, 9.

The Defendant’s conviction was upheld, but her sentence was vacated on sentencing grounds and remanded. Levy, 13.

Bow Tie Thoughts

Many of the e-Discovery admissibility examples are coming from criminal cases, since they go to trial more.  As more civil cases go to trial, Courts will likely look to the “e-admissibility” cases from criminal convictions for guidance in authenticating ESI, addressing hearsay and other evidentiary issues.

Request for Production: Any and All Documents in the Past 46 Years Supporting the Overthrow of a Communist Government

Sometimes there is a case that is just too unique to pass up.  This is one of those cases.

The Defendants in a criminal case were charged  in a conspiracy to ship weapons to Laos to overthrow the Communist Government.  United States v. Jack, 2009 U.S. Dist. LEXIS 43120, 2-3 (E.D. Cal. May 9, 2009).  The charges included: 

1)      Conspiracy to violate the Neutrality Act.

2)      Receive and possess firearms and destructive devices; and

3)      Export listed defense items without a State Department license;

4)      Conspiracy to kill, kidnap, maim and injure people in a foreign country;

5)      Conspiracy to possess missile systems.  Jack, 2-3.

The Defendants sought discovery from 1961 to 2007 documenting communications between different government agencies and the Defendants regarding U.S. “policy, planning or conduct towards the government of Laos.”  Jack, 6. 

The Defendants argued this discovery spanning Presidents Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush 1, Clinton, and Bush 2, was “material to the defendants’ state of mind with regard to the alleged conspiracies as well as to their possible defenses of outrageous government conduct, entrapment and defense of others.” Jack, 6.

The Defendants claimed they this evidence would show they would not have taken action against Laos without the approval of the United States.  Jack, 6.

The Defendants further argued that this evidence would show the United States was not “at peace” within the meaning of the Neutrality Act.  Jack, 6.

The Possible Electronically Stored Information: Wiretaps & Email

The Defendants sought production of “all recordings or documents resulting from the interception of their telephone, email or other communications by presidentially approved warrantless interception, by the NSA and/or by a NARUS computer.”  Jack, 11. 

The Defendants cited various news articles and court decisions to highlight the post-September 11, 2001 terrorist attacks intelligence gathering practices to show NSA and government eavesdropping might have intercepted phone and email messages from the Defendants.  Jack, 11. 

The Government’s Take on the Defendants’ Requests

Somewhere, some Assistant United States Attorney had many late nights briefing a discovery opposition.  The Defendants sought documents regarding assassination attempts and 46 years worth of documents. 

The Prosecution claimed that the government produced all discovery pertaining to call history, court-ordered wiretaps, and emails seized according to search warrants.  The Prosecution stated that there was no NSA or other government agencies with intercepted communications.  Jack, 18-19.

Enter the Court

I am sure the Judge had a few choice private moments sitting in front of his computer considering the underlining facts of conspiracy to overthrow of a government and posses a missile system.

Things generally get bumpy when a Court states it had a “difficult time ‘getting its arms around’ this motion.” Jack, 21.  On one side were Defendants who wanted 46 years worth of documents and on the other U.S. Attorneys who thought the trial was a mere formality for Defendants who were guilty as charged.  Jack, 21. 

Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), the prosecution must produce discovery “”which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense.”  Jack, 22. 

If you like history, politics and enjoy cases involving Iran Contra, the Court had very detailed analysis of how the United States being in an undeclared war is not being “at peace” with that country.  Jack, 35-37.  However, that is beyond the scope of this blog. 

The Court ordered the Government to produce any and all documents or communications from January 1, 2005 to June 3, 2007 that evidenced any covert or overt military ops with respect to Laos.  Jack, 37-38.

One can imagine how the government would conduct a diligent search: constructing key words and possible redactions in the name of national security for any production.  

As for the Defendants’ request for any “recordings or documents obtained by the government constituting or describing cell telephone calls, emails or other communications,” the Court denied the request.  Jack, 41-42.

The Court reasoned that since the Government had produced all communications they had pursuant to court-ordered wiretaps and search warrants, there was no reason to compel discovery that did not exist.  Jack, 41-42.

Bow Tie Thoughts

“Jack” is a wild case.  The fact the Government had to produce material from January 2005 to June 2007 regarding military operations or plans in Laos is an impressive win for the Defendants.  While it is unknown how the government maintains such information, the search would be very interesting to observe.