Preserving metadata for civil litigation

On March 7, 2014, the FISC issued an Opinion and Order denying, without prejudice, the government’s motion of February 25, 2014 to amend the minimization provisions in the January 3 reauthorization so that metadata could be retained for more than 5 years in order to fulfill the government’s obligations to preserve evidence in civil litigation. In support of the denial, the FISC cited the absence of evidence that any federal district court or court of appeals had entered a preservation order or that any plaintiff had sought the preservation of telephony metadata that the government had held beyond five years.

In response to the FISC’s Opinion and Order and the government’s notification of its intent to begin destroying metadata that it had held for more than five years, the Electronic Frontier Foundation (“EFF”) obtained a temporary restraining order on March 10, 2014 in its Jewel v. NSA, 3:08-cv-04373 (N.D.Cal. filed Sept. 18, 2008), and First Unitarian Church of Los Angeles v. NSA, CV 13-3287 (N.D. Cal. filed July 16th, 2013) cases pending before Judge Jeffrey White in the Northern District Court of California. The order prohibited the Government from destroying any telephony metadata, and Judge White scheduled briefing to conclude by March 18 and a hearing to be held on March 19, 2014. On March 21, Judge White ordered the government to halt the destruction of telephony metadata, “sequester or remove” the data from “government practices,” or “arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later discovery if requested.” At 4.

On March 11, 2014, the Government filed a Notice and Motion informing the FISC of Judge White’s temporary restraining order. The Government asked to be relieved of any obligation to destroy metadata until Judge White decided whether, for purposes of discovery in Jewel and First Unitarian Church, it was required to preserve metadata for more than five years. In its Opinion and Order of March 12, 2014, the FISC granted the Government’s request on the ground that “it is appropriate for [the] District Court [in the Jewel and First Unitarian Church cases], rather than the FISC, to determine what BR metadata is relevant to that litigation,” at 5. In relieving the Government from the five-year destruction rule, the FISC imposed the condition that any metadata held for more than five years be preserved or stored in such a way as to preclude any access by NSA analysts for intelligence purposes. In addition to notifying the FISC of the resolution of the preservation issue in Jewel and First Unitarian Church and of any further material developments in civil litigation, the Government was ordered to provide the FISC with written notice before providing any further access to telephony metadata for civil litigation purposes.

In the March 12 Opinion and Order, Judge Reggie B. Walton noted that he would separately consider the Motion for Leave to Correct the Record and accompanying Declaration that the plaintiffs in the Jewel and First Unitarian Church cases filed with the FISC on March 10, 2014. On March 21, 2014, Judge Walton issued a further Opinion and Order, in which he granted the Jewel and First Unitarian Church plaintiffs’ motion to correct the record in regard to the preservation issues in those cases. Judge Walton admonished the Government for not fulfilling its “heightened duty of candor to the Court in ex parte proceedings,” stating that “the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government’s February 25 motion. … The fact that the plaintiffs had this understanding of those preservation orders – even if the government had a contrary understanding — was material to the FISC’s consideration of the February 25 Motion. … The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs’ understanding of their scope, regardless of whether the plaintiffs had made a ‘specific request’ that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence [between the plaintiffs and the Government, which was attached as an exhibit to the Government’s Notice and Motion of March 11, 2014] suggests that on February 28, 2014, the government sought to dissuade plaintiffs’ counsel from immediately raising this issue with the FISC or the Northern District of California.” March 21 Opinion and Order at 8-9. Judge Walton ordered the government to make a filing, pursuant to the provision in Rule 13(a) of the FISC Rules of Procedure for “Correction of Material Facts,” consisting, in part, of an explanation of its failure to notify the FISC.

In response to Judge Walton’s Order, on April 2, 2014, the government made a filing under Rule 13(a) of the FISC Rules of Procedure, in which it affirmed the seriousness with which it took its duty of candor to the FISC and its obligation to conform to preservation orders. The government stated that, “In light of this Court’s rulings on March 7 and 21 and the reasoning contained therein, the Government understands why this Court would have considered the Jewel plaintiffs’ recently-expressed views regarding the scope of the preservation orders in Jewel and Shubert as material to the Government’s motion [of February 25, 2014].” While expressing “sincere … regrets [for] not having brought these matters to the Court’s attention prior to its March 7, 2014 ruling,” the Government devoted most of the filing to explaining why it believed that the preservation orders in Jewel and the related Shubert v. Obama, No. C 07-00693 (N.D.Cal. filed May 17, 2006) case were not properly interpreted to extend to the collection of metadata under Section 215.

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