Supreme Court decides first e-discovery case

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“Some of the records on the backup tapes go back to the 1970s. An open-ended time span during which the records were produced or received is unacceptable. Accordingly, the overly broad demand of the subpoena duces tecum issued here cannot pass Fourth Amendment muster, and therefore, it must be quashed.” Hon. Patience D. Roggensack Wisconsin Supreme Court

The Wisconsin Supreme Court held on June 9 that, while a John Doe judge may subpoena electronically stored communications within the possession of the Legislative Technology Services Bureau (LTSB), the subpoena must be reasonably limited to communications relevant to the subject matter of the proceeding.

In 1997, as a response to its increasing use of technology, the legislature enacted sec. 13.96, creating the LTSB. The LTSB maintains legislators’, constituents’ and service agency e-mails; Internet Web page development and access; office programs such as Word, Excel and PowerPoint; bill drafting software; geographic information systems; publishing systems supportive of Wisconsin session laws, statutes and the Wisconsin Blue Book; hunting systems support; and production of audio and video materials for distribution via the Internet.

The LTSB supports approximately 900 legislative in-house computers and approximately 160 legislative notebook computers. The LTSB also maintains 54 legislative servers. Legislative documents are created on the 1,060 computers and then saved to one of the LTSB’s 54 legislative servers. The drives on the servers are backed up routinely to preserve data, should there be an electronic failure.

The data on the backup tapes include all legislative data that existed on the 54 legislative servers that support the entire legislative branch of government at the moment in time when the backup tapes were made.

In July 2001, the Dane County District Attorney commenced a John Doe proceeding to investigate the political caucuses for both parties in the Assembly and Senate.

The John Doe judge ordered the LTSB to produce the backup tapes that were made on Dec. 15, 2001 for all 54 servers, or in the alternative, to extract all “documents” for certain named legislators, their aides, and every person who worked in the Democratic and Republican caucuses for both the Senate and the Assembly.

The subpoena defined “document” as: “hard copies or electronic files and e-mails, drafts, revisions, attached ‘post-it’ notes or other supplemental material, graphic images, photographic images, disks, video recordings, tapes, or written materials regardless of how kept or denominated, and without regard to whether you consider any document to be public or private material.”

Mark Wahl, the director of the LTSB, moved to quash the subpoena, but the John Doe judge denied it. Wahl then sought a supervisory writ in the court of appeals, which certified the petition to the Supreme Court.

The Supreme Court accepted certification, and granted the writ, quashing the subpoena, in a decision by Justice Patience D. Roggensack. Chief Justice Shirley S. Abrahamson wrote a concurring opinion.

Statutory Privilege

The court first held that sec. 13.96 does not create a statutory privilege on Wahl’s part to keep all information confidential.

Section 13.96 provides in relevant part: “The legislative technology services bureau shall be strictly nonpartisan and shall at all times observe the confidential nature of the data and information originated, maintained or processed by electronic equipment supported by it.”

However, the court concluded, “just because data is to be kept confidential, it does not necessarily follow that Wahl has a legal privilege not to produce it. The concepts of ‘confidential’ and ‘legal privilege’ are very different.”

The court elaborated, “‘Confidenti
al’ data is that which is ‘meant to be kept secret.’ Legal privilege is a broader concept. It includes having the legal right not to provide certain data when faced with a valid subpoena.”

The court added, “In addition, privileges are the exception and not the rule; therefore, they are narrowly construed.”

Constitution

The court also rejected Wahl’s argument that either Article IV, Section 16, of the Wisconsin Constitution or the separation of powers doctrine protects the documents in the LTSB.

Section 16 protects legislators from prosecution for “words spoken in debate.” Without deciding whether any documents in LTSB’s possession fit within the definition, the court concluded, “even when Section 16 does apply, it provides only use immunity, i.e., immunity from prosecution based on use of the communications, and not secrecy, for communications of government officials and employees.”

The court also held that the subpoena does not violate Article IV, Section 8, because it does not intrude into a core zone of power reserved to the legislature.

The court reasoned, “The LTSB has not demonstrated why the use of the data it has collected cannot be shared with the executive branch when potentially criminal conduct is at issue. The subpoena is not attempting to change the way in which the legislature functions, but rather attempting to gather information to investigate the commission of a crime. If all of the documents maintained by LTSB were out-of-bounds to such an investigation, the legislature would have effectively immunized its members and employees from criminal prosecution and in so doing usurped the role of the executive branch in assuring the faithful execution of the laws and the prosecution of crime. And finally, all of the information sought concerns past communications. It does not concern present or future communications within the legislature.”

The court acknowledged the possibility that a privilege may exist for individual communications, but held that there is no absolute defense to complying with the subpoena.

Overbreadth

Nevertheless, the court found that the subpoena was overbroad.

The court found, “These backup tapes contain all the data stored on computers in the legislature on December 15, 2001, for all elected officials and other persons who work in the legislature. This data, the LTSB tells us, goes back to at least 1994 and some of it may have originated in the 1970s. It is undisputed that the requested backup tapes are the equivalent of hundreds of millions of printed pages.”

Relying on both the ancient case of Hale v. Henkel, 201 U.S. 43, 71 (1906), and numerous recent law review articles concerning electronic discovery, the court found that the subpoena was so overbroad as to violate the Fourth Amendment.

Finding that legislators and employees have an objectively reasonable expectation of privacy in the data, the court concluded, “the subpoena requested all of the data from the computer system of an entire branch of state government in order to investigate whether a crime has been committed. It did not specify the topics or the types of documents in which evidence of a crime might be found. The subpoena also did not specify any time period for which it sought records. Some of the records on the backup tapes go back to the 1970s. An open-ended time span during which the records were produced or received is unacceptable. Accordingly, the overly broad demand of the subpoena duces tecum issued here cannot pass Fourth Amendment muster, and therefore, it must be quashed.”

Assuming that another subpoena will issue after remand, and seeking to provide guidance, the court stated, “because the data sought is meant to establish criminal conduct and may be data in which a person has a reasonable expectation of privacy, there must be a particularized showing in the affidavit of the district attorney requesting a subpoena. In that regard, the affidavit submitted must: (1) limit the requested subpoena to the subject matter described in the John Doe petition; (2) show that the data requested is relevant to the subject matter of the John Doe proceeding; (3) specify the data requested with reasonable particularity; and (4) cover a reasonable period of time. Additionally, all of the communications to the John Doe judge must be made a part of the record (cites omitted).”

The Concurrence

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Chief Justice Abrahamson wrote separately, concluding that the Fourth Amendment analysis was unnecessary to resolution of the case, and that the lead opinion provides few answers to provide guidance in electronic discovery.

Noting that the court has not previously confronted electronic discovery, Abrahamson wrote, “The following are recurring themes in the literature on electronic document production: lawyers and judges must become better educated about electronic information and discovery thereof; the parties must meet, confer, and seek to identify the information management system, the people knowledgeable about the system, what information is and is not accessible, and the scope of each party’s rights and responsibilities; discovery (production) requests should be as clear as possible about the data being requested; responding parties are in the best position to evaluate the procedures, methodologies, and technologies appropriate for preserving and producin
g their own electronic data; and trial courts may need to be more active in managing electronic discovery and production than in managing conventional discovery or production of information, especially when parties cannot agree about the scope of the request for electronic information. The literature on electronic discovery is growing both in print and on the Internet.

“The majority opinion does not recognize the special problems in production of electronic information or give guidance to the judge or the parties about these unique issues.”

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David Ziemer can be reached by email.