Monday, August 4, 2014

Interesting Discovery Dispute in the News

Litigation is a dispute, but that is perhaps over-simplistic. Often, litigation may be better viewed as a series of disputes. Resolution or clarity in one of those disputes may lead to resolution or clarity in others. There is so much upon which parties may disagree, on substance or procedure.

Discovery is a procedural area that can be ripe for disagreement. I am sometimes surprised that experienced attorneys debate relevance in discovery disputes. Relevance is rarely the point in the discovery phase of litigation. Rule 60Q6.114 governs discovery in workers' compensation in Florida. This rule incorporates some provisions of the Florida Rules of Civil Procedure, with the phrase "as provided in the Florida Rules of Civil Procedure" applied to the taking of depositions, the production of documents, and "objections" to both. 

Florida Rule of Civil Procedure Rule 1.280 addresses relevance. In (1), it provides "parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action . . ."  This subsection (1) concludes with guidance on the relevance objection stating "it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." This is a fairly broad rule, allowing significant leeway in investigation for parties in the discovery process.

A recent news story about discovery is interesting. It begins with an explosion in Oklahoma City almost twenty years ago. According to the FBI, "an ex-Army soldier and security guard named Timothy McVeigh parked a rented Ryder truck" next to the federal building in Oklahoma City, and "inside the vehicle was a powerful bomb made out of a deadly cocktail of agricultural fertilizer, diesel fuel, and other chemicals. McVeigh got out, locked the door, and headed towards his getaway car. He ignited one timed fuse, then another." At about 9:02 on April 19, 1995 the truck exploded. There was a manhunt, an arrest, and the execution of Timothy McVeigh.

The FBI characterizes their investigation as "one of the most exhaustive in FBI history." They say that "no stone was left unturned to make sure every clue was found and all the culprits identified. By the time it was over, the Bureau had conducted more than 28,000 interviews, followed some 43,000 investigative leads, amassed three-and-a-half tons of evidence, and reviewed nearly a billion pieces of information." Most would agree that these numbers evidence a significant volume of effort and investigation.

Now there is a lawsuit pending in Salt Lake City. Attorney Jesse Trentadue is suing the FBI to obtain some of the evidence that was collected. He claims that there is security camera footage that would shed additional light on the story of America's worst example of domestic terrorism. Mr. Trentadue contends that this security film will show that Mr. McVeigh was not alone when he parked that truck. According to America Online the trial is about "what some consider a far-flung conspiracy theory" of this second culprit or conspirator. 

Mr. Trentadue had a brother who was detained by the authorities following the bombing. He died in custody, and the authorities ruled it a suicide. Curious about his brother's death, he is pursuing the FBI's data on the bombing. Mr. Trentadue wants to know why his brother was arrested and transported to Oklahoma City. He questions whether his brother would be dead had he not been. He believes that the detention and trip to Oklahoma may be because of physical resemblance between his brother and that second person allegedly in the truck with Mr. McVeigh that April morning. 

This is a significant discovery dispute. Regardless of the ultimate outcome, it is reasonable to believe that review of all of the FBI evidence would be time-consuming. Will the FBI be required to sift all of that evidence for the video? In deciding this, some questions may be helpful. How many of the stones the FBI turned were video? Were any of the more than 28,000 interviews video? How many of the 43,000 investigative leads were video? How much of the "three-and-a-half tons of evidence," and "a billion pieces of information" were video? In short, how much video evidence exists to be sifted?

Certainly, reviewing video can be time consuming. But in answering the question of whether the FBI must provide Mr. Trentadue with the surveillance film, it would seem relevant to know just how much video evidence actually exists in the entire population of evidence generally described by the FBI. In making the decision of whether to order the evidence produced, the time and financial burden on the FBI, on any defendant, of complying with a request may be a relevant consideration.

The AOL story says that "The FBI says it can't find anything to suggest the videos exist, and says it would be 'unreasonably burdensome' to do a search that would take a single staff person more than 18 months to conduct." Mr. Trentadue believes that there are tapes. Contrary to the FBI assertion that there is no support for their existence, Mr. Trentadue points to a "Secret Service document written shortly after the bombing that describes security video footage of the attack that shows suspects - in plural - exiting the truck three minutes before it went off." 

This is illustrative of so many disputes about civil discovery. In many instances there is a memo, a report, or a correspondence that makes reference to data. The reference leads to questions and then sometimes to depositions or requests for the data. To what extent are the parties in a lawsuit required to go in finding that data, sifting it for the relevant or responsive, and redacting from it the privileged? 

This is what attorneys do. They alternate between the role of investigator searching for answers and advocate. As investigator, they are combing what they do have, such as the Secret Service document, to learn about their case and to learn what else may exist that would possibly add to their knowledge. As an advocate, they face the judge to explain why they are entitled to what they seek or alternatively to explain why the judge should protect their client from what the opposing party(ies) seeks. 

The Judge in Salt Lake City will decide the lengths to which the FBI must go to examine or provide their data. The Judge will decide if the the Secret Service memo is sufficient evidence to require more effort. Like a discovery dispute, the Judge will likely be deciding whether Mr. Trentadue's requests are "reasonably calculated to lead to the discovery of admissible evidence."

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