Lawyers are familiar with the “litigation hold” – once litigation is reasonably anticipated, potentially relevant documents, including electronic documents, must be retained and not destroyed. Ordinarily the scope of that data extends to the specific parties and the locations their relevant data may be found (laptops, cell phones, etc.). But when the litigation involves the National Security Agency’s (NSA) bulk telephone records collection program, the scope of potentially relevant evidence rises to a new level.
There are several lawsuits pending across the country challenging the constitutionality of the NSA’s metadata collection, which was disclosed as part of Edward Snowden’s release of classified documents. A January 2014 order of the Foreign Intelligence Surveillance Court (FISC) requires that the data be destroyed five years after its production to the NSA. On March 7, 2014, the FISC denied the NSA’s request to be relieved from that order given its common law duty to preserve evidence relevant to pending litigation, including Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA in the Northern District of California, finding no clear showing that the plaintiffs in those cases wanted the data preserved.
But then on March 11, District Judge White issued a temporary restraining order in those cases, making abundantly clear — if it wasn’t clear earlier — that the preservation is necessary: “The Court HEREBY ORDERS its prior evidence preservation orders in these related matters shall be enforced.” http://www.lawfareblog.com/wp-content/uploads/2014/03/Order-Granting-TRO.pdf. The court explained that it “would be unable to afford effective relief once the records are destroyed, and therefore the harm to Plaintiffs would be irreparable,” granting a temporary restraining order “to allow the Court to decide whether the evidence should be preserved with the benefit of full briefing and participation by all parties.” The breadth of Judge White’s order extends to “Defendants, their officers, agents, servants, employees, and attorneys, and all those in active concert or participation with them,” and prohibits the destruction of “any potential evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephone metadata or ‘call detail’ records.”
The FISA court reversed itself the day after Judge White’s order, and agreed that the government should not be required to destroy the data. http://www.uscourts.gov/uscourts/courts/fisc/br14-01-opinion-140312.pdf. The FISC’s March 12 order saves the government from choosing whether to violate the California court orders and its common law obligation to preserve in Jewel and First Unitarian Church, or violate the FISC’s order to destroy the data.
The scope of the data required to be preserved is likely to be immense. The First Unitarian Church complaint charges the NSA with collecting “information for all telephone calls transiting the networks of all major American telecommunication companies, including Verizon, AT&T, and Sprint,” and including “all calls wholly within the United States, including local telephone calls, as well as all calls between the United States and abroad.” First Unitarian Church of Los Angeles v. NSA, No. 3:13-cv-03287 JSW, 2013 WL 5311964 (N.D.Cal.). Given the scale of telephone usage in the US, that is likely to be one whale of an e-discovery database.
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