Feds Can’t Hire ESI Vendor in Capitol Siege Criminal Cases

Federal prosecutors have been precluded from hiring an ESI vendor to assist with massive e-discovery in criminal cases arising out of the January 6^th prosecutions.

Deloitte Financial Advisory Services LLP is barred from helping federal prosecutors and other government staff sort and organize the huge volumes of electronic data and other evidence it has collected from the Jan. 6 insurrection at the U.S. Capitol, a federal court in Washington said Friday…. Federal Rule of Criminal Procedure 6 prohibits the disclosure of grand jury materials to anybody who isn’t “government personnel.”

B. Pazanowski, “Capitol Siege Prosecutors Lose Bid for Deloitte Help With Data,” (Bloomberg Law Jul. 16, 2021), citing In Re Capitol Breach Grand Jury Investigations Within the District of Columbia, Grand Jury Action No. 21-20 (BAH) (Dist.D.C. Jul. 16, 2021).

The court referred to certification of the Electoral College vote and wrote: “This ritual of democracy was disrupted by a rioting mob that breached the Capitol and put a temporary halt to the electoral vote count, assaulting members of law enforcement, destroying property, and encouraging others to join in the mayhem along the way.”

It then quantified the resulting prosecutions: “To date, more than 500 individuals located across the country have been charged, in over 175 misdemeanor informations and over 170 indictments, with criminal offenses in this District resulting from their participation in the attack on the Capitol.”

The court next described the government’s argument that the massive data collection was “the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence.”  It included more than 14,000 hours of surveillance footage, more than 2,000 hours of body worn camera footage, over 300,000 tips, over 2,000 digital devices, location history data, cell tower data for thousands of devices, information from searches of hundreds of accounts, over one million Parler posts (approximately 40 terabytes), toll records for hundreds of phone numbers, and over 240,000 FBI memos and attachments.  Additionally, the government pointed to the need to extract metadata from the ever-expanding collection.

The government asserted the need to create a database in order to review the collection and provide exculpatory information to defendants.  To do so, the government contracted with Deloitte for processing, review, and production.

The government’s procurement contract with Deloitte imposed confidentiality restrictions on Deloitte employees, required security clearances for all assigned personnel, and also required encryption, and other security measures.  All work was to be supervised by federal prosecutors and the data would be returned and media sanitized upon conclusion. However, the data would be hosted by Deloitte.

That presented a problem.  Grand jury information would be included among the material on Deloitte’s servers.  The court explained the government’s dilemma:

Recognizing its obligation to share any exculpatory evidence within this enormous dataset with counsel for the hundreds of Capitol attack defendants, the government retained, on May 28, 2021, an independent contractor, Deloitte Financial Advisory Services, LLP (“Deloitte”), “to assist in document processing, review and production of” this voluminous discovery. … The government represents that use of Deloitte’s expertise in this manner “is vital to the United States’[s] ability to review large data/document productions and is essential to [the government’s] ability to prosecute these cases effectively,” … and “to ensure that all defendants obtain meaningful access to voluminous information that may contain exculpatory material” while “adequately protecting the privacy and security interests of witnesses and subjects from whom those materials were derived,” ….

However:

These materials presented to grand juries are or may be shielded from disclosure to Deloitte by Federal Rule of Criminal Procedure 6(e), which prohibits, with narrowly construed exceptions, the disclosure of “matter[s] occurring before the grand jury,” Fed. R. Crim. P. 6(e)(2)(B), to any persons or entities.

The court recognized – “[u]ndoubtedly” – the government’s “genuine need for the highly technical expertise offered by Deloitte to provide litigation support and process efficiently the cumbersome myriad forms of electronic data collected in investigating the Capitol attack.”

However:

Nonetheless, for the reasons explained below, the term “government personnel” in Rule 6(e)(3)(A)(ii) permits disclosure of grand jury materials only to employees of public governmental entities and cannot be stretched to include a private contractor such as Deloitte, no matter how compelling the need for disclosure may be. Further, the government has not made a sufficient showing of particularized need to warrant disclosure under Rule 6(e)(3)(E)(i). Disclosure to Deloitte is therefore prohibited, and the government’s motion to authorize disclosure based on one or the other of these exceptions must be denied.

One of many concerns stated by the court was that information relating to people who were not charged may be revealed: “First, the general nature of the government’s request to disclose all grand jury materials to Deloitte means that the materials to be disclosed may have been collected in connection with investigations of individuals who are never targeted, never charged, or exonerated. Since the government’s request is also prospective, applying to any related matters yet to be brought before a grand jury, … the materials to be disclosed to Deloitte may relate to individuals still under investigation who may be indicted or exonerated in the future.”  It found that the “safeguards built into the government’s contract with Deloitte” were insufficient to “assuage the concern that bulk disclosures to this private entity will undermine the interests of grand jury secrecy, particularly in such a high-profile and historically significant investigation.”

In short, the court wrote:  “Disclosures of grand jury information must be substantiated by more than a need for the government to separate efficiently the wheat from the chaff.”

NOTE: Nothing in the court’s decision or in this post is critical of Deloitte.  The court decided this case based on the grand jury secrecy provisions of Fed.R.Crim.P. 6.