Metadata and the 5th Amendment Privilege

As I’ve explained in earlier posts, the U.S. Supreme Court has held that

(1) You can’t claim the 5^th Amendment privilege against self-incrimination as the basis for refusing to provide the government with physical evidence by, say, handing over the drugs in your pocket or letting a law enforcement officer take a sample of your DNA or of your blood because the privilege applies to “testimony,” not to physical evidence. “Testimony,” basically, is the act of communicating facts or opinions; it’s the equivalent of what a witness does when he/she takes the stand and testifies in court.

(2) But you CAN claim the 5^th Amendment privilege and refuse to produce physical evidence when a court orders you to do IF the act of producing the evidence is “testimonial,” i.e., if by producing the evidence you are in effect telling the government something it doesn’t know. The U.S. Supreme Court has held, as I’ve noted in earlier posts, that the act of producing evidence is testimonial when it (i) concedes that the thing exists (which it obviously has to if you’re going to turn it over), (ii) concedes that it’s in your possession or control (also pretty obvious, but sometimes people produce evidence by giving up a key to a safety deposit box or, as I’ve noted an encryption key) and (iii) “authenticates” what you produce, i.e., implicitly says “here is the thing you asked for.”

This post is about a case in which a defendant in a federal criminal case was ordered to produce certain metadata and refused, citing the second principle described about (which is often known as the “act of production doctrine.”) To understand the issues in the case, we need some factual context, which isn’t provided by the opinion we’ll be analyzing. I did find the basic facts we need in several news stories.

The case is U.S. v. Sandra Hatfield, David H. Brooks and Patricia Lennix and it’s pending in the U.S. District Court for the Eastern District of New York (Case No. 06-CR-0550). Here, according to a story from Businessweek, is how the prosecution arose:

David Brooks, a founder and former chief executive officer of military contractor DHB Industries Inc., committed a $185 million fraud and looted the company to pay for personal expenses, a prosecutor said at a trial today [January 25, 2010].

Brooks and former chief operating officer Sandra Hatfield are accused of insider trading as well as securities fraud and tax, wire and mail fraud for manipulating financial records to increase DHB’s reported earnings and profits. DHB. . .now called Point Blank Solutions Inc., makes body armor for the military and police.

Brooks and Hatfield allegedly lied about inventory of `Interceptor’ combat vests that were shipped to the U.S. armed forces and falsely inflated the company’s value and their own stock, prosecutors said. The trial . . . will last several months, the U.S. said. . . .

The defendants, who have pleaded not guilty and deny the allegations, each face as much as 25 years in prison if convicted of the most serious counts of fraud.

Here, according to an April 6 story from The Harness Edge, is how the issue we’re concerned with arose:

The ongoing trial of former horse . . . breeder David Brooks . . . took a twist yesterday when the federal judge threatened to hold him in contempt . . . if his attorneys do not provide evidence she has requested. . . .

The request came last week when Brooks’ attorneys presented an email in an attempt to discredit the government’s key witness against Brooks, Dawn Schlegel the former chief financial officer at DHB Industries which Brooks is accused of defrauding $185 million.

Prosecutors are suggesting that the email, supposedly from Schlegel to a former co-worker, was forged to undermine Schlegel’s credibility.

Judge Joanna Seybert last week ordered Brooks’ attorneys to turn over to her last Friday the metadata history of the email which would show when it was created and any subsequent alterations.

This request, which has yet to be fulfilled, came after Schlegel testified that an email she had sent to a colleague had been changed to include wording regarding a sexual encounter. Federal prosecutors said the email that Brooks’ lawyers were presented was not in any of the documents the government and defense attorneys obtained from DHB computers. . . .

The opinion we’re concerned with issued on April 7: U.S. v. Hatfield, et al., 2010 WL 1423103 (U.S. District Court for the Eastern District of New York 2010). It’s very brief and only tells us that the judge ordered Brooks to produce the “metadata associated with DB-DS-153” on April 1 and again on April 5. U.S. v. Hatfield, supra. In her April 5 order, the judge directed Brooks to produce the metadata “in camera, so that the Court could determine: (1) whether the act of production privilege applies and, (2) whether the metadata impeaches DB-DS-153's authenticity.” U.S. v. Hatfield, supra.

As Wikipedia explains, “in camera” means the metadata was produced to the judge (only) so she could review it in private before determining if the privilege applied and/or if it impeached DB-DS-153’s authenticity. It seems Brooks did produce the metadata to the court for in camera review because in this opinion she (i) finds that the act of production doctrine (and therefore the 5^th Amendment privilege) doesn’t apply to it and (ii) so “releases DB-DS-153’s metadata” to the prosecution. U.S. v. Hatfield, supra.

Judge Seybert begins the opinion by noting what is required for the act of production doctrine to apply and bring the act of producing evidence within the protections of the 5h Amendment privilege. For it to apply, the 3 requirements I outlined above must be met AND the existence and location of the evidence must not be a “foregone conclusion,” i.e., the government mustn’t know where the evidence is and what it is (basically).

She finds that the act of production doctrine doesn’t apply to the metadata for two reasons:

First, the `existence and location of the [metadata] papers’ is not `unknown to the government.’ On April 1, 2010, Mr. Brooks' attorney, Richard Levitt, represented in open court that Mr. Brooks possessed the metadata and would willingly `give it to the court for in camera review’ and `explain to the court exactly what it means.’ . . . At this time, Mr. Brooks had not yet invoked the act of production privilege, and Mr. Levitt made no effort to assert it on his behalf. Instead, Mr. Levitt objected to providing it to the Government on the grounds that the metadata (associated with an e-mail that Dawn Schlegel purportedly wrote) somehow constituted Mr. Brooks' `private information.’ Thus, by the time Mr. Brooks asserted the privilege, the Government already knew that the metadata existed and that Mr. Brooks' defense team possessed it. See In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 93 (`production may not be refused [i]f the government can demonstrate with reasonable particularity that it knows of the existence and location of subpoenaed documents’). . . .

Second, Mr. Brooks' production of the metadata would not implicitly authenticate it. This is because Mr. Brooks' act of producing the data is not a `necessary link to any incriminating evidence contained’ within it. . . . Indeed, in Mr. Brooks' April 2, 2010 letter to the Court, he represented that the Court could obtain the identical metadata by subpoenaing Venable LLP for the `mirror’ of Ms. Schlegel's hard drive, and then looking in Ms. Schlegel's Microsoft Outlook deleted items folder. Accordingly, it is not `necessary’ for Mr. Brooks to produce the metadata: it is merely most convenient for him to do so. In addition, `[i]mplicit authentication occurs when an individual who receives a [subpoena] demanding production of documents complies with the [subpoena] and thereby implicitly testifies that he owns or at least possesses the documents.’ U.S. v. Walker, 982 F.Supp. 288 (U.S. District Court for the Southern District of New York 1997). But here, Mr. Levitt already represented -- prior to Mr. Brooks invoking the privilege -- that Mr. Brooks `own[ed]” the metadata when he represented that the metadata was Mr. Brooks' “private information.’ Thus, Mr. Brooks' act of producing the metadata lacks any testimonial quality. . . .

U.S. v. Hatfield, supra. In the final part of her opinion, Judge Seybert cites the “foregone conclusion” principle, and finds that it applies here:

Furthermore, the `foregone conclusion’ rule belies Mr. Brooks' privilege assertions. Fisher v. U.S., 425 U.S. 391 (1976). This rule states that `[w]hen the existence of documents is a foregone conclusion, the [party]'s concession that he has the documents would add little or nothing to the government's information, and the question is not of testimony but of surrender.’

U.S. v. Hatfield, supra.

I don’t know enough about the facts in this case to be able to state with any certainty as to whether Judge Seybert’s ruling is accurate . . . but my sense is that it is. I can see another argument here as to why Brooks can’t invoke the 5^th Amendment privilege courtesy of the act of production doctrine: It’s a basic principle of 5^th Amendment law that to be able to claim the privilege you must “stand on” the privilege, i.e., you must claim it and refuse to answer (or to produce evidence).

If you answer (or produce evidence), you’ve lost the privilege because, according to the Supreme Court, you haven’t been “compelled” to do anything. As I’ve noted before, to take the 5^th Amendment, you have to be (i) compelled (the court is forcing you on pain of being locked up for contempt if you don’t do what it says) (ii) to give testimony (plug in the act of production doctrine here) that (iii) incriminates you. In U.S. v. Mandujano, 425 U.S. 564 (1976), the U.S. Supreme Court explained that if you voluntarily answer a question (or produce evidence), you’ve waived the privilege. It looks to me like what Brooks’ attorney did and Brooks’ letter to the court MAY (again, I only have very sparse facts to work with) have waived the privilege, assuming it ever applied.