United States District Court, D. Kansas
FINAL PRODUCTION AND BRIEFING ORDER
JULIE
A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.
On
October 2, 2018, this Court reconvened the evidentiary
hearing that began on May 15, 2018, on all matters that were
set for hearing on that date, specifically: 1) the Special
Master's Phase III Report; 2) the Federal Public
Defender's ("FPD") Motion to Show Cause and
Supplemental Motion for Order to Show Cause (Docs. 301, 585);
and 3) pending Rule 41 motions (Docs. 82, 85). At the
conclusion of the evidentiary hearing on October 12, 2018,
the Court advised the parties it was not closing the record
and would set a hearing on outstanding issues concerning the
production of documents for November 16, 2018. The Court also
set for hearing the FPD's Second Supplemental Motion for
Order to Show Cause (Doc. 668). After hearing testimony from
three witnesses from the Office of the United States
Attorney, District of Kansas ("USAO") and the
Special Master, as well as arguments and statements of
counsel, the Court makes the following findings and order
addressing outstanding matters with respect to the
government's production of documents.
I.
Procedural History and Facts
The
procedural history of this case is mostly undisputed and the
Court assumes the reader is familiar with the orders,
hearings, and discovery requests that precipitate the matters
before the Court. The Court will not restate the underlying
facts in detail, but will provide excerpts from the
proceedings and orders as needed to frame its discussion of
the discovery production matter presently before it.
The
USAO has been on constructive notice to preserve all
information in its control or possession that relates to the
allegations in the Black case since at least August
9, 2016-the date of the emergency hearing set to consider
Defendants' and the FPD's allegations that the USAO
wrongfully acquired and used recorded attorney-client
confidential communications in the underlying investigation
in the Black case.[1] The USAO was also put on actual
notice of the need to hold and preserve such information in
an email sent by the FPD on August 30, 2016.[2]Moreover, the USAO
was given direct orders to do so in the claw-back order
issued by this Court on August 16, 2016.[3]
On
October 25, 2016, the USAO was ordered by the Special Master
"to identify and preserve all
information and sources of information relevant to" the
matters leading to his appointment on October 11,
2016.[4] The Special Master made clear that
"[t]his obligation includes preserving all emails
(regardless of the device used to send or receive them) and
other documents related to video- and audio-recording at
CCA-Leavenworth or any other detention
facility."[5] In addition, the Special Master
specifically ordered the USAO "to immediately make a
forensic image of the personal computers of Erin Tomasic, Kim
Flannigan, and Pauletta Boyd, and also of any computer used
to view the video-recordings produced in this case by
individuals affiliated with the [USAO]."[6] At the November
16, 2018 hearing, the Special Master testified that he always
expected these records to be produced and to that end, he
engaged in collaboration with the government on search terms
beginning in the fall of 2016.
The
USAO was first on notice of the likelihood of formal
discovery regarding the underlying Black investigation and
the extent of the USAO's cooperation with the Special
Master and his investigation, when it received the subpoena
duces tecum ("SDT") issued by the Special Master in
advance of the evidentiary hearing scheduled for January
2018. The first SDT demanded production of, inter alia,
documents and materials sent to USAO-Kansas personnel
concerning retention, preservation, and production of
materials that relate to or concern the Black case and
responses thereto; and a list or log of all repositories in
the USAO-Kansas systems that could have been or were being
searched using the list of search terms negotiated with the
Special Master. Production was stayed, however, by the
Department of Justice's ("DO J") petition for
mandamus relief[7] The Court did not later enforce that SDT,
given the government's claims that it had authority to
preclude production and testimony based on its housekeeping
regulations often referred to as the DOJ's Touhy
Regulations ("Touhy").[8]
The
Court ultimately rescheduled the evidentiary hearing for the
first two weeks of October 2018. On August 17, 2018, the
Special Master served the government with a much narrower
SDT. This second SDT demanded, inter alia,
information, documents, and instructions sent by Emily
Metzger, the USAO Litigation Hold Coordinator, concerning
retention, preservation, and production of materials related
to the issues in Black and responses thereto, as
well as a list or log of all repositories being searched
using the negotiated search terms. It included a response
deadline of August 31, 2018, prior to the commencement of the
hearing set for October 2, 2018. The government did not
object to that SDT, but instead merely asked for a two-week
extension to produce the subpoenaed information ahead of the
October hearing.[9] The Court granted that request, giving the
government an extra week, until Friday, September 21, 2018,
to respond.[10]
Nonetheless,
the government failed to produce all subpoenaed information,
either timely or in full. Specifically, on Monday September
17 and Tuesday, September 18, the government timely produced
two thumb drives containing a total of 14.16 GB of
electronically stored information ("ESI"). The
government also notified counsel and the Court of its
intention to produce documents responsive to the SDT on a
rolling basis, with more to come later that week. No. further
production responses were delivered before the deadline
expired on Friday, September 21, 2018.
On
Monday, September 24, 2018, government counsel informed
counsel for the Special Master that they were continuing to
work on production, but had no authority from the Office of
the Deputy Attorney General ("DAG"), which the
government claimed was required in order to release more
subpoenaed documents. Counsel for the Special Master chose
not to seek relief from the Court, but responded that going
past the week prior to the hearing would be problematic. The
government then either obtained from the DAG the necessary
authority or decided such authority was unnecessary; it
produced a thumb drive containing 7.07 GB of ESI on September
25; another thumb drive containing 6.20 GB of ESI on
September 27; and yet another thumb drive containing 2.11 GB
of ESI on September 30.
The
hearing started as scheduled on October 2, 2018. Upon
questioning, counsel for the government could not say whether
the USAO had provided all information responsive to the
SDT.[11] The Court allowed the hearing to
continue as scheduled through October 12, 2018. During the
October 2 hearing, the government delivered another thumb
drive containing 0.32 GB of ESI. The government produced a
final thumb drive containing 0.06 GB during the
hearing on October 11, too late for use with the only
witnesses to which it applied.
On
October 12, the last day of the hearing, government counsel
still could not say whether the USAO would produce more
information.[12] Furthermore, counsel for the government
rejected the demand that the government produce a log of
information withheld from production as "simply
impractical," noting that the Special Master "is
just going to have to rely on trust in the U.S.
Attorney's Office that it is complying with what it said
it's going to do."[13] The Special Master responded
that under these circumstances, it simply could not rely upon
that.[14] It being evident that the Special
Master, Defendant Carter, the FPD, and other interested
parties were denied an opportunity to fully consider the
government's discovery responses, the Court kept the
record open and ordered a further evidentiary hearing for
November 16, 2018, to "figure out whether the production
is complete, all other concerns about production, [and] any
requests for remedies about production."[15]
It was
first verified at the November 16, 2018 hearing that the USAO
had not put an effective litigation hold in place until May
2017, nine months after the government was repeatedly placed
on notice in August 2016 to implement a litigation hold
preserving all its information relative to the allegations in
the Black case. That evidence contradicted earlier
testimony in October 2018 and SDT responses that the USAO had
a litigation hold in place by virtue of an email sent to
employees by Emily Metzger on December 19, 2016. In fact,
that email merely told employees to preserve documents,
without identifying what type of documents or where the
documents could be found. On November 16, the USAO Systems
Manager testified that the December email did not trigger the
DOJ's litigation hold requirements that would prevent
archived documents from being permanently deleted, and it did
nothing to halt DOJ's automatic rolling purge of contents
of certain other repositories.
Further,
counsel for the government have been on notice that they
needed to provide a production log, or otherwise work with
the Special Master to resolve any issues concerning withheld
documents, since at least June 7, 2017, when the Special
Master directed them to discuss whether to produce an
adequate log in camera to the Court or work with him
on agreed redactions from produced materials.[16] The
government, however, failed to provide a log of withheld
documents, asserting it was too much work or too voluminous.
Of course, submission of a privilege log is standard in
discovery production, obviating the need for the government
to be placed on notice, and the Court did not have to
specifically order it. In any event, in October, counsel for
the government expressly refused to produce a
log.[17]
In
addition to thwarting the preservation and production of
documents, the government has allowed certain documents to be
forever lost through an automatic rolling purge process that
was not halted through a timely litigation hold. Moreover,
the government failed to protect against any purposeful
destruction of documents by allowing the alleged wrongdoers
to perform their own document reviews and production in
response to the SDT issued ahead of the October 2018 hearing.
Notably, the only two prosecutors who did not have an
opportunity to review their own repositories-Erin Tomasic and
Tanya Treadway-proved to have breached attorney-client
privilege by listening to audio recordings. The government
then produced a myriad of documents by dumping them on the
Special Master and ...