In our seventh annual Data Discovery Legal Year in Review, we’ll examine the legal issues that made 2021 important in the data discovery disciplines of e-discovery, data privacy, and data protection. This year’s edition features Judge Michelle Rick of the Michigan Court of Appeals, adding the important perspective of the state courts, where the overwhelming majority of litigation occurs. David Horrigan of Relativity will add his legal research from the year. EY Germany Partner Meribeth Banaschik will provide the international perspective, and Scott Milner, Partner at Morgan Lewis & Bockius LLP brings the practitioner’s view of 2021. We’ll examine this year’s US Supreme Court decisions on data law as well as significant decisions from the state and federal courts.
This is a CLE Program.
I) THE MOST IMPORTANT DATA LAW DEVELOPMENT OF THE YEAR
a. The Judicial Perspective
b. The Practitioner Perspective
c. The International Perspective
II) THE U.S. SUPREME COURT ON DATA LAW IN 2021
a. Computer Use and Legislative Intent:
Van Buren v. United States, No. 19-783 (U.S. June 3, 2021), was the first U.S. Supreme Court Review of the Computer Fraud and Abuse Act of 1986 (CFAA). Officer Van Buren “ran license plates” through a Georgia state law enforcement data base for an acquaintance, and he was prosecuted criminally under the CFAA. Section 1030(a)(2) of the CFAA provides criminal penalties for “whoever intentionally accesses a computer without authorization or exceeds authorized access …” (emphasis added). The US Department of Justice argued the language of the CFAA was clear and unambiguous. In an amicus brief, the Electronic Fronter Foundation (EFF) had an opposing view, arguing the clear legislative intent was to go after hackers—not prosecute a police officer who had the authority to use the system.
The case is interesting—as evidenced by the 4-3 circuit split on the issue among U.S. Circuit Courts of Appeals.
For additional background, See David Horrigan, Does Checking Sports Scores or TikTok on a Work Computer Violate Federal Law?, THE RELATIVITY BLOG, May 26, 2020. NOTE: After this article was written, the U.S. Supreme Court held 6-3 in favor of former Officer Van Buren on June 3, 2021.
b. Social Media Law:
In Mahanoy Area Sch. Dist. v. B.L, No. 20-255 (U.S. June 23, 2021) was a U.S. Supreme Court case examining the limits of First Amendment protections for student online speech taking place off-campus. In this case, a student junior varsity cheerleader, Brandi Levy, who identified herself in media interviews, did not make the varsity squad. An upset Ms. Levy posted a vulgar message on Snapchat, and the school suspended her from cheerleading for a year. Ms. Levy’s parents sued, arguing the punishment violated Ms. Levy’s First Amendment rights.
For background, See David Horrigan, Brandi the Cheerleader, Social Media Law, and the Limits of Free Speech Off-Campus, LEGALTECH NEWS, Apr. 28, 2021. (Attached) NOTE: After this article was written, the U.S. Supreme Court held 8-1 in favor of Brandi Levy on June 23, 2021.
III) E-DISCOVERY LAW: Cooperation
E-DISCOVERY PROCEDURE: Time Zones and Deadlines
In Island, LLC v. JBX Pty Ltd, 2021 U.S.P.Q. 2d 779 (T.T.A.B. 2021), the Trademark Trial and Appeal Board (TTAB) declined to issue an order that a discovery response to opposing counsel was untimely where counsel in California served discovery via email at 11:43 PM Pacific on the day of the deadline, which was 12:43 AM Mountain the day after the deadline at the litigants principal place of business in Wyoming, 1:43 AM Central at opposing counsel’s office in Iowa, and 2:43 AM Eastern the day after the deadline at the Trademark Trial and Appeals Board in Washington, DC.
The party requesting discovery moved to have the responses stricken as untimely, arguing Eastern time controlled, but the TTAB rejected the argument. The Board conceded that Fed. R. Civ. P. 6(a)(4) and Trademark Rule 2.195, 37 C.F.R. § 2.195 mandated Eastern time. However, the Board noted, those rules applied to filings with the court—not, as in this case, service between the parties. In addition, the Board said that, in proceedings before it, the timeliness of discovery requests is based on when the requests are served—not when they are received.
For additional background, See David Horrigan, E-Discovery Practice and Procedure: Is Eastern Time the Standard for Discovery Deadlines?, LEGALTECH NEWS, Sept. 7, 2021.
IV) E-DISCOVERY LAW: Sanctions
In Heslin v. Jones, No. D-1-GN-18-001835 (Tex. 459th Dist. Co., Travis Co. Sept. 27, 2021), Judge Maya Guerra Gamble issued default judgments, a so-called “nuclear option” for discovery violations by InfoWars host Alex Jones and co-defendants who operated the website and programming with him. On his program, Mr. Jones had claimed the attack at Connecticut’s Sandy Hook School, which killed 26 people, was a hoax perpetrated by opponents of the Second Amendment.
In granting the default judgment, Judge Gamble said the InfoWars defendants had committed discovery violations, including:
- Failure to comply in numerous ways with an Oct. 18, 2019, discovery order,
- Failure to supplement discovery as promised in 2019,
- Failure to supplement discovery in June 2019,
- Repeatedly violating discovery orders in multiple cases,
- Engagement in “pervasive and persistent obstruction of the discovery process in general,”
- Showing a “deliberate, contumacious, and unwarranted disregard for the court’s authority.”
Noting that he had produced thousands of documents and that the merits of the case were pending before the U.S. Supreme Court, Mr. Jones said in a prepared statement with his attorney: “Nothing less than the fundamental right to speak freely is at stake in these cases. It is not overstatement to say the First Amendment was crucified today.” However, retired U.S. Magistrate Judge Andrew Peck, Senior Counsel at DLA Piper, rejected Mr. Jones’ analysis. “The judicial system will grind to a halt if parties could disobey or ignore court orders with impunity because the case involves First Amendment issues,” Judge Peck said.
For additional background, See David Horrigan, E-Discovery in the News: Sandy Hook Families Prevail After InfoWars’ Discovery Abuse, Legaltech News, Oct. 4, 2021.
V) DATA PRIVACY AND DATA PROTECTION
In United States v. Rubin, No. 18-CR-00568 (N.D. Cal. Aug. 25, 2021), an alleged robber of a Safeway pharmacy moved to suppress evidence obtained about him from an automated license plate recognition (ALPR) system. Surveillance video captured a suspect entering a blue Jaguar after the alleged robbery, and the ALPR system located the Jaguar owned by the defendant, Lembrent Rubin. Mr. Rubin argued the use of the ALPR system violated the Fourth Amendment’s prohibition against unreasonable searches and seizures.
In an apparent case of first impression in the Ninth Circuit, the court rejected Mr. Rubin’s argument. Distinguishing Mr. Rubin’s case from the cell tower data in the US Supreme Court’s decision in Carpenter v. United States, the court held that ALPR data was not the kind of “detailed, encyclopedic, and effortlessly compiled” data the Supreme Court described in Carpenter and thus, the ALPR use with Mr. Rubin was not a search for Fourth Amendment purposes.
For addition background, See David Horrigan, Data Privacy vs. Crime Prevention: The Automated License Plate Recognition Debate, American Bar Association, Tort Trial and Insurance Practice Section, Automobile Litigation Committee, Aug. 23, 2021.
CONCLUSIONS and CLOSING THOUGHTS
Honorable Michelle Rick, Judge, Michigan Court of Appeals
Meribeth Banaschik, Partner, EY Germany
David Horrigan, Discovery Counsel and Legal Education Director, Relativity
Scott Milner, Partner, Morgan Lewis & Bockius LLP