This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:
- a U.S. District Court for the Western District of Texas ruling that defendant placed a law firm’s investigation materials “at issue” in the litigation by relying on the fact of the investigation to demonstrate that it was not deliberately indifferent, resulting in waiver of work product protection
- a U.S. District Court for the Eastern District of Kentucky decision finding that compulsory biometric scans of all individuals present at the scene of a warrant search violated those individuals’ Fourth Amendment rights and held that the officers with a search warrant may compel certain individuals to unlock devices using biometrics without violating those individuals’ Fifth Amendment rights but may not compel production of a passcode
- a U.S. District Court for the District of Puerto Rico ruling ordering a plaintiff to produce his Facebook history since 2010 because the information was relevant to his wrongful termination and emotional-distress claims but acknowledging the plaintiff’s privacy interests and ordering plaintiff’s counsel to review the social media and produce the responsive information
- a U.S. District Court for the District of Columbia decision allowing a hospital medical malpractice defendant to conduct ex parte communications with plaintiff’s treating physicians pursuant to a protective order based on the substantial efficiency gains from such a process and the lack of any nonspeculative evidence that the healthcare providers would be intimidated thereby
1. In Doe 1 v. Baylor University, 2020 WL 2850232 (W.D. Tex. June 2, 2020), Magistrate Judge Andrew W. Austin of the Western District of Texas held that defendant placed a law firm’s investigation materials “at issue” in the litigation by relying on the fact of the investigation to demonstrate that it was not deliberately indifferent, resulting in waiver of the work product protection.
In this Title IX litigation, plaintiffs sued their former university alleging that it maintained discriminatory practices in handling student reports of sexual assault and mishandled their reports of sexual assaults based on gender. Id. at * 9. Plaintiffs sought discovery of all materials related to an investigation undertaken by a law firm at the direction of defendant. Id. at *1. Defendant had retained the law firm “to conduct an independent and external review of Baylor University’s institutional responses to Title IX and related compliance issues through the lenses of specific cases.” Id. (citation omitted). The investigation culminated in two presentations of the attorney’s findings and recommendations made to the defendant’s board of regents. Afterward, the defendant published two documents “summarizing [the law firm’s] investigative findings and recommendations.” Id. at * 2.
In the instant order, Magistrate Judge Austin considered whether the defendant could rely on the work-product protection to withhold the investigation materials. Id. at *1. The district judge overseeing the case had previously concluded that defendant waived the attorney-client privilege over the investigation materials “by making repeated public disclosures regarding the [law firm’s] investigation” and when defendant published an external report regarding the investigation. Id. at *3. Waiver of the attorney-client privilege did not automatically waive protection of work product, however, because the work-product protection is broader and distinct from the attorney-client privilege. Id. at *6. Magistrate Judge Austin articulated three general grounds for waiver of the work-product protection: “disclosure to a third party, placing the material ‘at issue,’ and ‘substantial need’ ” under Fed. R. Civ. P. 26(b)(3).” Id. at *7. The question in the instant order was whether the defendant had placed the investigation materials “at issue.”
Magistrate Judge Austin stated that determining whether a party has placed work product at issue is a fact-intensive analysis. It is not enough that the work product be “relevant” to the litigation to be “at issue.” Id. at *8. Rather, “[t]o place work product at issue in litigation, a party must ‘rely on’ the work product ‘to prove its claims in the case.’ ” Id. (quoting Windsor Securities, LLC v. Arent Fox LLP, 273 F. Supp. 3d 512, 518-19 (S.D.N.Y. 2017)). The prototypical manner in which work product is placed “at issue” is by an “advice of counsel” defense. Here, however, defendant “affirmatively disclaim[ed] any advice of counsel defense.” Even where a party disclaims any “advice of counsel” defense, work product can still be “at issue” when a party “asserts a claim or defense that relies on work product to prove its intent, knowledge of the law, or the reasonableness of its conduct.” Magistrate Judge Austin noted that district courts in the Fifth Circuit had “found that when a party cites to an investigation ‘to show that it exercised reasonable care to promptly correct any harassing behavior,’ the party waives work product ‘with respect to the investigative report and any underlying documents.’ ” Id. (quoting Mir v. L-3 Commc’ns Integrated Sys., L.P., 315 F.R.D. 460, 470-71 (N.D. Tex. 2016)).
Defendant placed the investigational work product at issue by relying on the fact of the investigation as part of its defense. Id. at *13. Plaintiffs had to prove, among other things, that defendant acted intentionally by “remaining deliberately indifferent to acts of ... harassment of which it had actual knowledge.” Id. at *9 (citation omitted). Defendant intended to rely on the fact that there was an investigation and that it had implemented reforms to “demonstrate that [it] was not deliberately indifferent.” Id. at *11-*12. To avoid any “advice of counsel” defense, defendant proposed omitting the identity of the investigators. Magistrate Judge Austin held that omitting reference to attorney involvement, however, was not enough to avoid waiver. The investigation and reform efforts were central to defendant’s defense. The mere fact that defendant and witness would not mention the fact of attorney involvement would not erase the reliance on the investigational work product. As Magistrate Judge Austin explained, “the knowledge and policy decisions of the Regents could provide evidence that [defendant] adopted sincere and comprehensive reforms, or that any mismanagement of a reported sexual assault was an isolated misstep.” Id. at *10. Thus, defendant’s “proposed defensive case explicitly relie[d] on [the law firm’s] work product.” Id. at *12.
Magistrate Judge Austin explained that the scope of the waiver extended beyond just factual work product. Id. at *16. “The scope of an ‘at issue’ waiver extends also to the material on that subject matter necessary to litigate the issue fairly.” Id. at *17. Defendant’s waiver means the “documents setting out the factual basis for [the law firm’s] conclusions and recommendations are discoverable.” Additionally, the search terms used by defendant’s attorneys to determine which documents to review were also discoverable. “Plaintiffs are entitled to know the search terms [the law firm] used and to have access to the smaller universe of factual data that [the law firm] actually based its investigation and recommendations on.” Id.at *18. Some materials, however, could still be withheld: “materials that were not considered by [the law firm] in its investigation or reform work, internal emails or communications between [the law firm’s] attorneys (not copied to any Baylor representative), legal research, materials [the law firm’s] attorneys prepared to aid in conducting witness interviews (witness binders, chronologies, etc.), and notes taken by attorneys during interviews.” Id. at *19.
2. In In re Search Warrant No. 5165, 2020 WL 3581608 (E.D. Ky. July 2, 2020), Magistrate Judge Matthew A. Stinnett ruled that compelled biometrics scans of all individuals present at the scene of a warrant search violated those individuals’ Fourth Amendment rights and held that the government may compel certain individuals to unlock devices using biometrics pursuant to a search warrant without violating those individuals’ Fifth Amendment rights but may not compel production of a passcode.
As part of a search warrant, the United States sought to search a premises belonging to a target individual and seized electronic devices found there. The U.S. also sought to compel any individuals present on the premises to provide their biometrics — physical features unique to an individual, such as fingerprints, facial features, or iris demarcations — to unlock electronic devices on the premises. The court addressed whether such compulsion was permitted under the Fourth and Fifth Amendments. Id. at *1–*2.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Id. at *2 (quoting U.S. Const. amend. IV). The parties did not dispute that a warrant was needed to seize and search the electronic devices, and the court had previously ruled that probable cause existed to do so. The only question was under what circumstances, if any, the government could compel any individual, whether a target or bystander, to provide biometrics in the execution of a search warrant for electronic devices.
The court and the parties agreed that law enforcement’s search of the electronic devices themselves would be compliant with the Fourth Amendment if the devices were unsecured or if law enforcement accessed them without the assistance of the suspect. However, compelling biometrics went beyond the scope of seizing and searching electronic devices and could be viewed as analogous to fingerprinting an individual. Therefore, the court had to determine (1) whether capturing physical characteristics of an individual was a search, and (2) if so, what burden must the government meet to capture such individual physical characteristics.
Magistrate Judge Stinnett noted that the Supreme Court had addressed the first question, holding that taking a fingerprint is a search. Id. at *3 (citing Hayes v. Florida, 470 U.S. 811, 816–17 (1985)). Hayes set forth three requirements for obtaining fingerprints at the scene of a search warrant execution, which a D.C. district court reframed to determine when the government can compel the use of an individual’s biometric features to unlock an electronic device. Id. at *3 (citing Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d 523 (D.D.C. 2018)). The reformulated test required that (1) the procedure was carried out with dispatch and in the immediate vicinity of the premises to be searched, and, at the time of the compulsion, the government had both (2) reasonable suspicion that the individual had committed a criminal act related to the same subject matter covered by the warrant and (3) reasonable suspicion that the individual’s biometrics would unlock the device. Id. at *4 (citing Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d at 531).
Magistrate Judge Stinnett then reviewed a set of hypotheticals explored by the parties in briefing and argument of the case. First, he determined that when executing a search warrant for an electronic device, if the government has reasonable suspicion that a device is controlled by the target, officers on the scene may compel that target to provide biometrics to unlock the device. On the other hand, officers on the scene could not necessarily compel a bystander to provide biometrics. For example, the government may have reasonable suspicion of a roommate’s criminal act and the ability to unlock a device. Thus they could compel biometrics from this individual. The same could not be said for the hypothetical mail carrier present during the execution of the search. Id. at *4–*5.
Rejecting the probable cause standard articulated by other courts, Magistrate Judge Stinnett found that “when attempting to unlock devices during execution of a search warrant, the government may compel an individual’s biometrics if there exists reasonable suspicion to believe that the individual has committed a criminal act for which the warrant authorizes an evidentiary search, and that the individual’s biometric features will unlock the device.” Id. at *5 (emphasis in original). The search warrant at issue was thus overbroad by applying to all individuals present.
Magistrate Judge Stinnett then turned to the Fifth Amendment, which provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” Id. At *6 (citing U.S. Const. amend. V). He concluded that privilege against self-incrimination does not apply to providing biometrics to law enforcement in order to unlock an electronic device.
The Fifth Amendment privilege applies only when there is (1) compelled, (2) incriminating (3) testimony. Magistrate Judge Stinnett reasoned that obtaining biometrics to access a device is clearly compelled conduct and, for the sake of the instant opinion, assumed it would be incriminating. However, to be testimonial, a communication must “explicitly or implicitly, relate to a factual assertion or disclose information.” Id. at *8 (citing Doe v. United States, 487 U.S. 201, 210 (1988)). Based on the “act of production” doctrine, producing items is testimonial when that production “reveals the contents of the target’s thoughts or impressions.” Id. (citing Fisher v. United States, 425 U.S. 391 (1976)). The Supreme Court’s analysis focuses on the lock versus key distinction, wherein the court determines whether the act of production is more similar to revealing the combination to a safe or to the surrender of a lockbox key. The former is testimonial; the latter is not. Id. at *9.
The Magistrate Judge determined that given the Supreme Court’s analysis, the only reasonable conclusion was that biometrics are a physical item that can be produced without mental impressions, communications, or admissions of mens rea. Compelling a target to unlock a device using these means “sheds no light on his actual intent or state of mind.” Id. at *10 (quoting Doe I, 487 U.S. 201, 216 (1988)). Biometrics were analogous to key in the lock-versus-key test.
On the other hand, a passcode was no different from a combination lock and is thus afforded Fifth Amendment protection. While passcodes and biometrics both perform the function of unlocking a device, “biometrics are not passcodes.” Id. at *12. Precedent emphasized that the act of production doctrine applies only when the act compelled “make[s] extensive use of ‘the contents of [the target’s] own mind.’ ” Id. (quoting United States v. Hubbell, 530 U.S. 27, 43 (2000)). Passcodes do reveal the contents of the target’s mind; biometrics do not.
While recognizing that other courts deemed it “absurd” that a defendant’s compelled production of password-protected information would hinge on whether the information was protected by biometrics or by a password, Magistrate Judge Stinnett found that precedent required that result. “[E]ven when presented with legal questions impacted by changing technology that has triggered significant modifications of individuals’ behavior, a lower court cannot ignore or rewrite the constitutional principles the Supreme Court has articulated. Rather, this Court’s job is to interpret and apply those precedents as faithfully as possible.” Id. at *14 (quoting Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d at 539–40).
3. In Rodriguez-Ruiz v. Microsoft Operations Puerto Rico, 2020 WL 1675708 (D. P.R. Mar. 5, 2020), U.S. District Judge Juan M. Perez-Gimenez compelled the plaintiff to produce his Facebook history since 2010 because the information was relevant to his wrongful termination claim and his demand for emotional distress damages but recognized the plaintiff’s privacy interests and ordered plaintiff’s counsel to review the social media and produce the responsive information.
The plaintiff had cerebral palsy and alleged he was unlawfully discharged by defendant in August 2016, claiming that his supervisor made disparaging comments about his disability, ordered disadvantageous transfers, and denied plaintiff reasonable workplace accommodations for his disability, all in violation of the Americans With Disabilities Act (ADA). Defendant denied the plaintiff’s accusations and, during discovery, sought plaintiff’s Facebook history from 2010 onward, arguing it was relevant to defendant’s defenses and that the emotional distress claimed by the plaintiff could have had other causes. The plaintiff objected to the request, claiming it was not “related in any way to the case, [was] overbroad, burdensome, offensive and a violation of plaintiff’s right to privacy,” and argued that he had provided access to his income tax returns and medical and psychological records, and “that should be enough.” Id. at *3-*4 (internal quotation marks omitted).
Defendant moved to compel production. Defendant’s discovery had requested all “messages, posts, status updates, comments on [plaintiff’s] wall or page, causes and/or groups to which [he had] joined, which [were in his account] and were published or posted between January 2010 and the present, related or referring to any emotions, feelings, mental status or mood status.” Id. at *2. It also requested copies “of all communications from [plaintiff], whether through private messages in the [plaintiff’s] profile or messages on [his] wall or page, which may provide context to the communications mentioned in the previous [request].” Finally, it requested “[a]ny and all photos taken and/or uploaded to [plaintiff’s] account between January 2010 and now.”
After surveying the decisions of other courts regarding the discoverability of parties’ social media content, Judge Perez-Gimenez stated that “posted or published content in a social networking site, such as a Facebook profile, is devoid of a right of privacy.” Id. at *3. More specifically, he noted that the contents of a plaintiff’s social media profile are “relevant and discoverable in employment cases which include claims of emotional distress when they reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” Id. at *4 (internal quotation marks and citations omitted). Still, Judge Perez-Gimenez noted that other courts have determined that a plaintiff’s entire social media profile is not necessarily relevant just because he is seeking emotional distress damages.
After a thorough survey of relevant case law, Judge Perez-Gimenez authorized discovery because “Defendant has adequately demonstrated the relevance of the content of Plaintiff’s social media account, and Plaintiff’s boilerplate and generalized objections to this request for production are not enough to carry the day.” He “agree[d] with other district courts’ conclusion that social media content that is reflective of a person’s emotional state is relevant and discoverable when the same has been placed at issue.” He held that some posts could, for example, demonstrate alternative sources of the plaintiff’s emotional distress and were therefore relevant and discoverable.
Recognizing the privacy issues regarding social media, the court granted defendant’s request in part and directed the plaintiff’s counsel to review the content of the plaintiff’s Facebook account and produce only content that referenced the plaintiff’s “emotions, feelings, mental status, or mood status”:
[T]he Plaintiff shall respond to Microsoft’s interrogatory requesting he identify all the social media platforms in which he has an account or profile. However, the court will not allow Defendant to have unrestricted access to Plaintiff’s social media account(s). Instead, Plaintiff’s counsel shall review all of Plaintiff’s social media content during the requested period (from January 2010 to the present) and produce any and all content, posts or comments referencing Plaintiff’s “emotions, feelings, mental status, or mood status,” (as requested), including any photographs which may have accompanied such posts or comments. The same test shall be applied to the request for Plaintiff’s uploaded photos insofar as pictures of the claimant taken during the relevant time period and posted on a claimant’s profile will generally be discoverable because the context of the picture and the claimant’s appearance may reveal the claimant’s emotional or mental status.
Id. at *5 (internal quotations omitted).
Finally, the court stated that it trusted the plaintiff’s counsel as an officer of the court to oversee this production but indicated that the defendant had a right to challenge the sufficiency of the production at a later time, if it so desired.
4. In Lovelace v. Washington Hospital Center, 2020 WL 2934917 (D.D.C. June 2, 2020), U.S. District Court Judge Ellen Huvelle allowed a hospital medical malpractice defendant to conduct ex parte communications with plaintiff’s treating physicians pursuant to a protective order because of the substantial efficiency gains from such a process and the lack of any nonspeculative evidence that healthcare providers would be intimidated by such a process.
Plaintiff Lisa Lovelace (Lovelace) was admitted to the Washington Hospital Center’s burn intensive care unit (ICU) in January 2016 after she presented symptoms of Stephens-Johnson Syndrome. Id. at *1. Lovelace alleged that the physicians who treated her negligently failed to treat her eyes, leaving her permanently blind, and she sued the hospital for medical negligence, negligent hiring, training, supervision, and retention and for lack of informed consent. Because 36 physicians and counselors attended to Lovelace during and after her treatment — including some individuals who were outside the court’s subpoena power — the hospital moved to interview the physicians ex parte under a protective order. Lovelace objected that the interviews would be an improper intrusion into her private medical history, would intimidate her healthcare providers, and should be denied for failure to show good cause.
As a threshold matter, the court examined the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and case law and concluded that the law permitted ex parte disclosure of a party’s medical information in a judicial proceeding where the party has made its medical history an issue in the case but noted that the scope of disclosure was limited to medical information with a direct bearing on the case. Judge Huvelle observed that nothing in HIPAA compelled the court to order ex parte communications and that although there is no uniform standard for evaluating such decisions, she relied on prior case law analyzing such a request under the “good cause” standard of Fed. R. Civ. P. 26. Id. at *1-*2 (citing Lovecchio v. WMARTA, 319 F. Supp. 3d 262, 265 (D.D.C. 2018)).
Judge Huvelle recounted prior ex parte orders entered by other district courts under the good-cause standard and found their facts were analogous to this case. She held that good cause existed for ex parte communications because several witnesses were beyond the court’s subpoena power, and the large number of treating physicians meant the “efficiency gains of ex parte interviews” would be “substantial.” Id. at *2 (citing Lovecchio, 319 F. Supp. 3d at 265). Judge Huvelle rejected Lovelace’s argument that an ex parte order would be overly intrusive, because Lovelace’s privacy concerns would be addressed in the protective order limiting the nature of what the physicians could disclose, and she found the claim that ex parte communications would intimidate her healthcare providers was “little more than speculation.”
Based on her determination of good cause, Judge Huvelle entered an order authorizing the hospital to conduct ex parte interviews of Lovelace’s treating physicians but limited the scope of such interviews to discussion to Lovelace’s treatment in the ICU and her subsequent treatment for the injuries she suffered while in the hospital’s care. Id. at *3. This limitation reduced the number of potential interview subjects to 14. Judge Huvelle further prohibited any disclosure of Lovelace’s psychological history, potential history of substance abuse, and her HIV status. The order gave the physicians the unfettered right to refuse to participate and also authorized the physician to request Lovelace and/or her attorneys to be present at the interview and allowed the physicians to bring their own counsel to the interviews. Finally, Judge Huvelle ordered the hospital to inform plaintiff’s counsel of the names of any physician with whom it spoke.
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