Debating Discovery

As I noted last week, I recently had the privilege of participating in a panel on the need for further amendments to the Federal Rules of Civil Procedure related to E-discovery. A video of the event can be found here. (It actually took place at the National Press Club and not the Mayflower Hotel.) For those who like this kind of thing, there’s some interesting stuff.  My argument is that we essentially provide an e-discovery safe harbor for “neutrally” adopted and consistently applied systems for the retention and retrieval of electronic information. Marty Redish wants to reconsider 1938 and, in particular, to place the cost of discovery on the requesting party. I agree but Ron Allen does not. Don Elliott wants to do it only in certain types of cases but, more provocatively, thinks that Rule 4 is unconstitutional.

My remarks begin at 26:00 with a shout out to this blog.

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Certiorari Granted in Material Witness Detention Case That Concerns the Iqbal Pleading Standard

Yesterday the Supreme Court granted certiorari in Ashcroft v. Al-Kidd, the petition in which the United States Department of Justice seeks to establish, on behalf of former Attorney General John Ashcroft,  that government officials have immunity from liability for claims that they used the material witness statute to detain a U.S. citizen, not, in reality, to ensure his availability as a witness in another case, but instead as a pretext for what was actually a preventative detention.

As the New York Times explains, the former detainee in question, Abdullah Al-Kidd, is a U.S. citizen born in Kansas as Lavoni A. Kidd; he was (I have read) a football star for the University of Idaho in the mid-90s.  In rejecting Ashcroft’s argument for immunity, the Ninth Circuit (in a split three-judge panel decision) first held that, at best, qualified immunity might apply, explaining its reasoning this way:

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Can You Be Forced to Turn Over Your Social Network Passwords in a Civil Case?

Let’s say you’re the plaintiff in a civil case against a neighbor, an employer, or a company you’ve done business with. One of the many pains of litigation is the discovery process–the process whereby each side collects information that it believes will help it win the case. Discovery can come in many forms, such as conducting depositions (sworn testimony from witnesses), requesting documents, or even requesting permission to visit a site and look around.

But let’s say that you have a Facebook account. The other side believes that some of your Facebook communications might be relevant to the case, so they specifically request access to your account. You refuse, and the issue goes to the court to sort out (if you’re in federal court, under Rule 37, for those of you playing at home). How should the court rule? Specifically, what should the court order you to do? Do you have to give the password for your account over to a party that, to put it mildly, you are probably not on the best of terms with?

Surprisingly, at least one court has said yes [Update: see comments below], and I believe similar requests are being made in courts all around the country. I believe this is a deeply disturbing development and is the result of either a failure to understand social networking technology, the rules of civil procedure, or both.

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