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Cautionary Tale: Make Sure Your Discovery Team Excels at Redactions – Case Law Update

This Justice Department mishap illustrates the importance of avoiding inadvertent disclosures of confidential information, which are difficult to put “back in the box” once it has been viewed by opposing counsel.

March 23, 2023 — by Joe Tate, Member and Managing Director, and Nicole Gill, Counsel, CODISCOVR

A key trial arising out of the January 6, 2021, attack on the U.S. Capitol was paused when federal prosecutors inadvertently produced an Excel spreadsheet of text messages in which classified and nonrelevant messages had been “hidden” rather than removed—allowing defense attorneys to access thousands of additional exchanges upon the receipt of discovery.

FBI Special Agent Nicole Miller was testifying in a seditious conspiracy trial brought against leaders of the Proud Boys when the defense attorneys began asking her about text messages she believed had been withheld as classified. Prosecutors objected and the trial was halted to investigate the matter and allow the parties to debate the admissibility of the messages.

Upon investigation, it was revealed that the Justice Department had bungled the production of Miller’s text messages during discovery. To compile discoverable text exchanges, FBI headquarters sent Miller an Excel spreadsheet of her text messages that had been pulled from a classified computer network. Miller reviewed the messages and filtered the rows to show about 25 relevant, unclassified exchanges that she believed were discoverable. But when she sent the final excel list to prosecutors, it was produced to the defense without any changes—still containing thousands of hidden exchanges, which prosecutors argue contained classified information related to the Proud Boys case and other unrelated cases.

The judge ordered a pause in trial so that the FBI can conduct a classification review, but defense counsel has already argued that some of the hidden rows were directly relevant to their case and were not properly withheld as classified.

The Justice Department’s mishap illustrates the importance of avoiding inadvertent disclosures of confidential information, which are difficult to put “back in the box” once it has been viewed by opposing counsel. Our team can efficiently identify confidential data and metadata that may be hiding in otherwise disclosable documents, and will ensure that it is appropriately removed or redacted prior to production.




 

Joe Tate
Joe A. Tate, Jr., Member and Managing Director of CODISCOVR, focuses his practice on eDiscovery, information governance, and data management issues in the context of litigation and investigations. In his role, Joe is responsible for the day-to-day management of a team of attorneys and technologists that handle all phases of the eDiscovery lifecycle. Connect with Joe →
Nicole Gill
Nicole Gill, Counsel at CODISCOVR, concentrates her practice on electronic discovery in a variety of contexts, manages complex document review workflows, and routinely navigates data and privacy protection laws across many jurisdictions, both domestic and foreign. Nicole also implements quality control procedures to mitigate risk and counsels both clients and colleagues on issues related to eDiscovery, information governance and data management. Connect with Nicole →

 


CODISCOVR, an ancillary business unit of Cozen O'Connor, sits at the intersection of law and technology.  We combine cutting-edge technological savvy with an immense amount of hands-on trial experience to manage the entire life cycle of the eDiscovery practice. Learn more

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