Monday, June 17, 2013

The Subpoenas, the Motion to Quash and the Source Code

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Angel Ocasio is apparently a defendant in a federal criminal prosecution pending in the U.S. District Court for the Western District of Texas: U.S. v. Ocasio, 2013 WL 2458617 (2013). This opinion concerns two subpoenas he had issued in an effort to obtain certain information Ocasio apparently believes will support an argument he is making in a motion to suppress he filed in that case.  U.S. v. Ocasio, supra.



The issue in this case is whether the district court judge should enforce or quash the subpoenas. As this site notes, when a court quashes a subpoena, it basically cancels it, so the person served with the subpoena does not have to comply.  If you would like to read more about that process, check out this prior post.



This opinion begins by explaining that



[o]n May 3, 2013, Angel Ocasio served two subpoenas duces tecum on agents of TLO, LLC. . . . These subpoenas, issued pursuant to Federal Rule of Criminal Procedure 17,  demand that agents of TLO, LLC -- a third-party software company -- produce the computer source code and documentation relating to a piece of software created by TLO and identified as the Child Protection System or CPS. . . .



Ocasio seeks the source code and documentation to support his argument, made in a motion to suppress, that the government's use of the CPS software violated the 4th Amendment of the United States Constitution. . . .



U.S. v. Ocasio, supra.



A couple of weeks later,



[o]n May 21, 2013, the government learned that these two subpoenas had been served. . . . [O]n May 23, 2013, the government filed a motion to quash these subpoenas on both procedural and substantive grounds. . . . In its May 28, 2013, Order, the Court denied the government's motion to quash on both grounds. . . .



Then, on May 30, 2013, Ocasio filed his Motion to Compel. . . . [which] seeks an order from the Court requiring TLO to produce the source code and documentation identified in the two subpoenas. . . . That same day, . . . TLO filed its Motion to Quash the two subpoenas. . . . On June 3, 2013, Ocasio filed his Response to TLO's Motion to Quash. . . .



On June 4, 2013, TLO filed its Response to Ocasio's Motion to Compel. . . . Finally, that same day, June 4, 2013, TLO filed a supplement to its Motion to Quash. . . . The Supplement primarily contains additional affidavits that support the Motion to Quash. . . .



U.S. v. Ocasio, supra.



In its motion to quash, TLO



argues that the subpoenas must be quashed for a number of reasons. First, TLO argues that the subpoenas are defective because of procedural issues. . . . Second, TLO argues that Ocasio's request for the CPS source code and documentation is beyond the scope of Rule 17. . . .   Third, TLO argues that the information sought is protected by the law enforcement privilege. . . .



U.S. v. Ocasio, supra.



The judge’s opinion then explains that in his motion to compel, Ocasio



argues that TLO must produce the requested source code and documentation because service of the subpoenas was proper. . . . Additionally, in his Response to the Motion to Quash, Ocasio argues that his request for the CPS source code and documentation is not beyond the scope of Rule 17 and that the CPS source code and documentation are not protected by any claim of privilege. . . .



U.S. v. Ocasio, supra.



The judge began her analysis of these arguments by noting that she would address both the Motion to Quash and the Motion to Compel together because they “relate to the same subpoenas and raise the same three issues outlined above”. U.S. v. Ocasio, supra. She also explained that Federal Rule of Criminal Procedure 17(c)(1) governs motions for subpoenas duces tecum and states that a subpoena can order the






U.S. v. Ocasio, supra.  She also pointed out that Federal Rule of Criminal Procedure 17(c)(2) states that “`[o]n motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.’” U.S. v. Ocasio, supra. 



As to the first issue – procedural defects – TLO argued that the subpoenas were



flawed because they were served by mail without consent, served on improper agents, lack appropriate date and time indications for delivery, and incorrectly order the CPS source code and documentation to be delivered to defense counsel. . . .



Ocasio argues that the subpoenas are not technically defective, and, even if they are defective, the subpoenas provided TLO with notice of the requested materials for over a month, yet TLO was unwilling `to answer the subpoenas in any fashion.’ . . .



U.S. v. Ocasio, supra. 



The judge found that she did not need to address TLO’s procedural defect arguments because Ocasio had addressed these concerns by serving,



on June 3, 2013, a new subpoena on TLO's custodian of records. . . . This Second Subpoena seeks the same information sought in the previous two subpoenas. . . . Indeed, in its Response to Ocasio's Motion to Compel, TLO states that it was `properly served yesterday, on June 3, 2013 with a subpoena dated May 29, 2013.’ . . .



Moreover, the Second Subpoena appears to correct the alleged defects in the previous subpoenas. Specifically, the Second Subpoena is addressed to TLO's custodian of records and directs that the CPS source code and documentation be delivered to this Court without delay. . . . Therefore, because the Second Subpoena has been properly served and seeks the same materials but adequately addresses TLO's procedural concerns, the Court does not decide whether the initial subpoenas were defective.



U.S. v. Ocasio, supra. 



The judge then took up TLO’s argument that “the CPS source code and documentation are beyond the scope of Rule 17 because, according to TLO, Ocasio is `merely fishing for any possible support that might be beneficial to him.’” U.S. v. Ocasio, supra. She explained that to support this argument, TLO had submitted an affidavit



of William Wiltse, an employee of TLO. . . . In his First Affidavit, Wiltse explains . . .that CPS is a complex software system that is useful to law enforcement agencies. . . . Seemingly to provide additional support to this claim, TLO has provided a second affidavit from Wiltse with its Supplement. . . .



In his Second Affidavit, Wiltse states that `[a]t more than 4.7 million lines of code, it would be difficult for TLO to compile and virtually impossible for receiving parties to review prior to trial. This line count does not include source code for the proprietary database storage systems designed by TLO.’ . . .  Wiltse also suggests that if information about the CPS system were disclosed, it would harm ongoing investigations across the world. . . .



U.S. v. Ocasio, supra. Ocasio, on the other hand, argued that “the information sought is relevant to his Motion to Suppress and that TLO has not demonstrated that his request is either unreasonable or oppressive.”  U.S. v. Ocasio, supra.



The judge explained that a subpoena “is only within the scope of Rule 17 if the party seeking the subpoena can show that the materials sought are relevant, that they are admissible, and that they are requested with adequate specificity.” U.S. v. Ocasio, supra. She also noted that “[i]f the moving party [e.g., Ocasio] cannot reasonably specify the information contained or believed to be contained in the documents sought, but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused.”  U.S. v. Ocasio, supra. As she noted earlier, Rule 17(c)(2) lets the court quash a subpoena if compliance would be unreasonable or oppressive. U.S. v. Ocasio, supra.



The judge then explained that she had addressed “the bulk of this argument” in her prior ruling and found that Ocasio’s request was “well within the scope of Rule 17.” U.S. v. Ocasio, supra.  She noted that in her May 28, 2013 order she found it was



`plain that the information [Ocasio seeks] is relevant, admissible, requested with adequate specificity, and sought in good faith.’ . . . [T]he Court noted that Ocasio's request met the Nixon relevancy requirement because `the CPS source code and documentation are relevant to resolving [Ocasio's] pending Motion to Suppress and determining whether or not the government's use of the CPS software constituted a 4th Amendment violation.’ . . .  Additionally, the Court found Ocasio's request met the other requirements of Nixon and therefore was within the scope of Rule 17.



U.S. v. Ocasio, supra. (In U.S. v. Nixon, 418 U.S. 683 (1974), the Supreme Court held that to have a subpoena duces tecum enforced, the person issuing it must show the court that the documents are relevant as evidence, they are not otherwise available, the party cannot prepare adequately without them and the request is made in good faith and is not a “fishing expediton.”)






She also found that his request was neither unreasonable nor oppressive:



TLO never directly raises this concern. See Mot. to Quash 5–7 (claiming Ocasio's request is a fishing expedition but not discussing the unreasonableness or oppressiveness of compliance). This argument is only hinted at in Wiltse's Second Affidavit to extent he suggests that the CPS spans many lines of code, will take a significant amount of time to compile, and harm investigations. . . .



 But TLO never explains the significance of the number of lines of source code in the software and the Court can think of none. . . . Wiltse also states that `it would be difficult for TLO to compile’ the CPS source code in time for trial. . . . TLO fails to explain how this process is difficult, what makes compliance difficult, or why this is a valid consideration for the Court. . . .



Further, Wiltse's statement that the CPS source code would be `impossible’ to review before trial is immaterial. . . .This is because it is not proper for TLO or Wiltse to presuppose the results of Ocasio's inspection of the CPS source code and documentation. Finally, any risk of disclosure and harm to ongoing investigations can be mitigated with a protective order. . . .



U.S. v. Ocasio, supra. 



Finally, TLO argued that the “CPS source code and documentation should not be disclosed because they are protected by the law enforcement privilege”. U.S. v. Ocasio, supra. As I noted in an earlier post, in Roviaro v. U.S., 353 U.S. 53 (1957), the Supreme Court recognized the existence of a privilege that “prevents the ‘disclosure of law enforcement techniques and procedures, [preserves] the confidentiality of sources, [protects] witnesses . . . and otherwise [prevents] interference with an investigation.’” In re U.S. Department of Homeland Security, 459 F.3d 565 (U.S. Court of Appeals for the 5th Circuit 2006).  For more on the privilege, check out the prior post.



Here, the judge explained, again, that she had already



addressed the bulk of this privilege argument in its May 28, 2013, Order. . . . [T]he Court found the government could not assert the law enforcement privilege as to the CPS source code and documentation because neither were government documents. . . . The Court also found that, even if the source code and documentation were government documents, the privilege would not be applicable in this instance based on the facts of the case. . . .



U.S. v. Ocasio, supra. 



She noted that TLO had not submitted any “case law or evidence” that would suggest her ruling on that issue was incorrect, nor had it provided any “reasons that affect the Court's prior conclusion that the facts of this case do not warrant the application of the privilege in this instance.” U.S. v. Ocasio, supra. As to TLO’s concerns about privacy, she reiterated that “any privacy concerns can be mitigated by the entry of a protective order.”  U.S. v. Ocasio, supra. 



The judge therefore denied TLO’s motion to quash and granted Ocasio’s motion to compel, ordering that “the items sought by Ocasio must be delivered to the Court on or before 10:00 a.m. Mountain Daylight Time on June 10, 2013, for delivery to defense counsel.”  U.S. v. Ocasio, supra. She also ordered that a protective order “shall issue forthwith.”  U.S. v. Ocasio, supra. 

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