United States v. O’Keefe, Case No. Cr. 06-249 (D.D.C. February 18, 2008)

In a fascinating turn of events, Magistrate Judge John M. Facciola used the Federal Rules of Civil Procedure governing document discovery to resolve disputes concerning the government’s responses to defendants’ requests for exculpatory documents in government files in this criminal case. The case involved an indictment against O’Keefe, an employee of the Department of State in Canada, for receiving, quid pro quo, gifts and other benefits from his co-defendant, Sunil Agrawa, for expediting visa requests for employees of Agrawal’s company. Judge Friedman of the District Court for the District of Columbia had ordered the government to conduct a thorough and complete search of both its hard copy and electronic files in “a good faith effort to uncover all responsive information in its possession custody or control.” This included “employees below the level of consular officers – including even consulate secretaries and non-U.S. citizen employees.” Needless to say, the defendants moved to compel compliance with the court’s order.

Defendants’ principle complaint concerned the government’s production of written documents in a manner that made it impossible to identify the source or custodian of the document. As a result, they sought an index. The court responded that “[u]nder 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.” The court focused on production in the manner the documents are maintained:

The Rule was amended in 1980 to prevent the juvenile practice whereby the producing party purposely rearranged the documents prior to production in order to prevent the requesting party’s efficient use of them. 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. Thus, if the documents were produced as they were kept in the ordinary course of business, the requesting party could not thereafter demand that they be indexed, catalogued, or labeled. The producing party can, alternatively, label the documents to correspond with the categories in the initial request, irrespective of how the documents were maintained in the ordinary course of their business.

Slip Opinion at 7-8 (citations omitted). The court followed this with a rather remarkable statement that may surprise some of you:

If documents are removed from their original containers and then copied, those copies are not being produced in the manner in which the originals were ordinarily kept, since, in their original condition, the originals were most probably in labeled file folders. 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.

Slip Opinion at 8 (citations omitted). The court was terse. If the documents weren’t produced with folders, they weren’t produced properly.

The court had a simple solution for the authentication problem caused by production of documents from various consulates without providing any information regarding custodians or sources. Judge Faciola recommended to Judge Friedman that all documents produced by the government be deemed authentic.

Dealing with the relevance problem was a bit more complicated. He ordered counsel to meet, defense counsel to produce all documents it could not identify by author, recipient, date of creation, and consulate location, and the parties to stipulate to this information.

Of course, defendants made a preservation argument, which the court treated much like the court in the Petcou case discussed here. If you want evidence preserved, you have an obligation to notify the opponent of what that evidence is.

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.

Slip Opinion at 13 (citations omitted). Defendants’ reference to “inexplicable deficiencies in the government’s production of electronically stored information” was given short shrift. If you have claim for destruction of evidence, make it directly and support it with evidence.

The defendants also sought an agreement from the government that it preserve metadata from the ESI produced, since images of the ESI were produced without metadata. The court held that production in TIFF or PDF format would suffice under the rules, unless defendants can show that those formats are not “reasonably useful” and that native format, with accompanying metadata, meet the “reasonably useful” criteria, whereas TIFF and PDF do not. The court basically told the defendants to secure a stipulation from the government or move the court to compel the government to preserve.

The final, and perhaps most interesting, issue dealt with by the court was defendants’ complaint that the search terms used by the government were inadequate. The court was not sympathetic. Given the complexity of the interplay between the sciences of computer technology, statistics and linguistics, “for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”

This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, 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.

The ruling here is pretty clear and constitutes a warning to all of us. It’s obviously best to seek agreement on search terms. Failing that, retention of an expert is advisable. The court cites to some work by the Sedona Conference as well as a Law Review Article that appeared in the Richmond Journal of Law & Technology by George Paul and Jason Baron. There are other articles out there. This area is likely to see a great deal of litigation in the future, especially given the emerging recognition by the courts that relevance review of gigabytes of data may not be warranted in many cases. See the discussion in the Petcou case here.