alt.legal: The Age Of Congressional eDiscovery

Ed. note: As always, the thoughts and views expressed here are the author’s and not those of his employer, Thomson Reuters.

Remember when I wrote about how Hillary Clinton could technically go to jail for failure to properly respond to a Congressional subpoena? Here we are, a little over two years later, and Hillary Clinton is not in jail. She served zero prison time and survived a labyrinth of crossing investigations, as ex-FBI Director James Comey announced in July 2016 that the FBI would not recommend pressing charges, although he did sort of change his mind for a time, and maybe forever changed the present era of American politics.  (And by the way, Jason Chaffetz and the House Oversight Committee are still investigating the issue in 2017 by way of chasing down Bryan Pagliano, Clinton’s IT specialist responsible for her private email server.  Chaffetz has requested the DOJ to press criminal charges against him.)

We are in an era of Congressional subpoenas and requests for documents, and Jason Chaffetz has a lot to do with it. In researching this article, I found it fascinating and great fun to browse through the letters issued by the House Oversight Committee (note to the ATL editors—not volunteering to be a Hill correspondent or anything). The committee stays very busy, sending letters around facial recognition technology in state and local law enforcement agencies and whether they violate the Fourth Amendment, a letter regarding hearings around Operation “Fast and Furious” (the ATF gunwalking scandal), letters to various government agencies reminding them of their requirement to report federal spending in a standardized way under the 2014 DATA Act, and – somewhat germane to today’s discussion – a letter threatening enforcement against the TSA for its failure to comply with a subpoena related to potential misconduct by TSA counsel.

And that’s just over the last month! It all makes for good wonky perusing, especially for lawyers, and it helps put into perspective the work of government beyond the perpetually fleeting topics that pop up in the news.

But let’s get to the topics at hand.  Here’s a quick overview of some of the recent activities that have been jammed into our nonstop news cycles:

FBI Director James Comey

After the firing of James Comey, the House Oversight committee took two actions.  First, on May 10, the Committee requested Michael Horowitz, the Inspector General at DOJ, to expand the ongoing review of certain actions taken by the FBI and the DOJ, including Director Comey’s letters to Congress related to Secretary Clinton’s email server.  Second, on May 16, the Committee wrote to Andrew McCabe, the Acting Director of the FBI, responding to the “I hope you can let this go” memo and requesting internal memos authored by Comey as reported by the New York Times and other news outlets.

Letters drafted by the Committee requesting documents come with an attachment (see page 2) that looks suspiciously like a Rule 34 request for production of documents. The attachment details the electronic format in which the documents should be produced, metadata that should be included, Bates numbering, guidelines for a privilege log asserting privilege for any document, and delivery instructions.

Of course, the Comey memos, if they exist and are produced, will be especially revelatory documents. We have all been taught the value of a “memo to file,” but it appears that at the FBI, it’s a matter of course.  “A conversation with a subject of an investigation is evidentiary, no matter what is discussed,” according to one former FBI official.

Today, May 25, the FBI responded to Chaffetz’s letter requesting the memos stating that due to the appointment of Special Counsel Robert Mueller, they are “undertaking appropriate consultation to ensure all relevant interests implicated by your request are properly evaluated.”

Somehow, Chaffetz crafted a well-cited response this same day noting that Congress’s investigation is broader in scope than the investigation of the newly-appointed special counsel. The deadline for the FBI is now June 8, 2017.

Former NSA adviser General Mike Flynn

Shifting away from the Oversight Committee for a moment, both the House and Senate Committees have subpoenaed former NSA adviser Lieutenant General Michael Flynn. On May 22, Flynn, through his legal representation at Covington & Burling, has responded in a letter to the Senate Intelligence Committee invoking the Fifth Amendment protection. Citing United States v. Hubbell, 465 U.S. 605 (1984), Flynn’s attorneys make arguments that complying with a subpoena would be testimonial in nature, and thus protected by the Fifth Amendment.

Their arguments echo objections made in civil discovery. For instance, they note that the Senate Committee asked for documents of which they had no prior knowledge, and they assert that the failure to demonstrate “reasonable particularity” about the documents makes Flynn’s act of production “testimonial in nature.” There is considerable debate around these arguments, as constitutional experts bone up on Fifth Amendment protections in document subpoenas to appear on TV and radio shows across the country.

The Senate Committee, in the meantime, has taken action (the link is video, because I always find it funny to watch two senators try to share a podium). First, the Committee sent a letter to Flynn’s lawyers questioning the Fifth Amendment arguments. Second, it issued subpoenas to two of Flynn’s businesses, because “while we disagree with General Flynn’s lawyers’ interpretation of taking the Fifth … it is even more clear that a business does not have the right to take the Fifth.”

Some questions:

I don’t have too many conclusions to draw here, just lots of questions.

First off, who runs ediscovery for Congress?  Cost and competence are always questions when it comes to document processing, search, and review.  The flurry of investigatory activity from Congress’s inquiries comes with some taxpayer-funded expenses.  Who is providing the competent resources needed, and at what cost? It certainly seems like the House Oversight committee has some experience doing this and knowing what to ask for (one of Chaffetz’s letters came with complaints about OSTs and PSTs). And who has the lucky job of reviewing documents produced to them from individuals, other agencies, and corporations?

What will happen when parties choose not to comply?  In the world of civil and criminal procedure, penalties for bad actors in discovery are pretty stiff, for offenses like spoliation or tampering with evidence.  And Congress does have some remedies for noncompliance, although as I noted in the Clinton coverage, they are rarely enforced. Will the DOJ take Chaffetz’s recommendation to prosecute Pagliano around his failure to comply with a subpoena?

Are the trends that affect ediscovery – cloud storage, social media and global privacy, just to name a few – also in play with Congressional investigations?

From a political standpoint, does any of the timing and urgency of this have to do with the fact that Jason Chaffetz is stepping down on June 30?  The rumor is that he’s eyeing a bid for the Utah governor’s race, where he was previously chief-of-staff for Jon Huntsman (although they’ve had a big falling out ever since Chaffetz endorsed Romney for president over Huntsman in 2011).

These topics are top of mind for me because I just can’t avoid seeing ediscovery issues at every turn in these investigations.  And these are mostly lawyers in Congress, right?  Many of them litigators?  Interestingly, while Jason Chaffetz appears to have mastery over the minutiae of requesting documents and running investigations, his background does not include law school or legal practice.

One thing is clear to me, though. The advancements in the rules, processes, services, penalties and technology surrounding ediscovery in civil or criminal litigation can be – and should be, and perhaps are being – applied as best practices, equipping the United States Congress to rigorously and efficiently pursue their investigations.

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Ed Sohn is VP, Product Management and Partnerships, for Thomson Reuters Legal Managed Services. After more than five years as a Biglaw litigation associate, Ed spent two years in New Delhi, India, overseeing and innovating legal process outsourcing services in litigation. Ed now focuses on delivering new e-discovery solutions with technology managed services. You can contact Ed about ediscovery, legal managed services, expat living in India, theology, chess, ST:TNG, or the Chicago Bulls at [email protected] or via Twitter (@edsohn80). (The views expressed in his columns are his own and do not reflect those of his employer, Thomson Reuters.)