Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants

United States v. Shabudin, No. 11-cr-00664-JSW-1 (NJV), 2014 WL 1379717 (N.D. Cal. Apr. 8, 2014)

In this criminal case, the Government was ordered to continue to maintain a Relativity Database (the “Database”) utilized by the parties to review documents produced by the Government and to continue to provide Defendants with the access and support that the parties had previously negotiated, despite the depletion of funding for the Database which was accelerated by the Government’s voluntary actions.

“The Government created the Database because it was in its interest to do so, as it needed to manage the vast quantities of documents being produced in this action.”  The parties thereafter negotiated an agreement allowing Defendants to access the Database and to utilize “project managers” for technical and substantive support.  Although the Database was “completed” in January 2013, “[t]he parties started gaining access to the Database” in February 2014.

In the course of preparing for trial, Defendants moved to compel the Government to upload additional information amounting to about one million pages.  In lieu of being ordered to do so, the Government agreed to voluntarily upload the information.  Approximately three weeks later, however, the Government announced for the first time that the efforts to upload the additional information were depleting the Database budget and that access would therefore end in June 2014- approximately “three months after the Government filed its superseding indictment and six months before the beginning of trial.”  At that time, the information would be transferred to a Concordance database to be maintained at Defendants’ expense.  It was later revealed that although “all document level fielded data that [was] currently viewable and searchable” would be transferred, the metadata created by the Database, including saved searches, for example, would not.  Defendants objected that the loss of such metadata would be significant, “eviscerating months of effort to build a defense.”   Upon Defendants’ opposition to the proposed end of access and the court’s inquiry into the possibility of extending the time and request for additional information, the Government “unilaterally decided to discontinu[e] paying for ‘non-technical support and paralegal services’ in order to extend the duration of the Database.”  The Government represented that the cost of operating the Database with the agreed upon level of service to Defendants was $66,132.87 per month, as opposed to the $27,947.71 per month required to operate a “bare bones version.”  Defendants argued that the discontinued services were “vital to their ability to use the Database.”

Notably, when asked to explain when it first notified the defendants or the court that the Database could be wound down before trial, “[t]he Government could not point to a single instance where it actually informed Defendants that this was a possibility.”  The Government nonetheless argued that Defendants should have been aware of the possibility, including by relying on the parties’ contemplation of a two year duration (relying on a June 2012 commencement date) and by implying that because Defendants understood that a $1.8 million budget had been allocated to the Database they should therefore have “expected that the allocated funds would be insufficient and that the Database would be shut down well in advance of trial.”

Taking up the issue of how to handle the Database, the court emphasized the Government’s voluntary decision to upload the additional documents (discussed above) and its failure to warn the defendants that the decision would “come at the steep price of curtailing meaningful access to the Database.”  Ultimately, the court made a number of findings, including that the Government never disclosed that the Database could wind down before trial, that the Government voluntarily undertook the uploading of additional information without warning Defendants of the potential impact to their use of the Database, that the Government did not establish that a transfer to Concordance could be effective or that Defendants could retain “meaningful access” to the Database without the project managers, that Defendants had no resources to fund a Concordance database, that the unilateral change to the Terms and Conditions for Access had prejudiced Defendants’ ability to prepare for trial and offended the court’s “notion of fairness,” and that winding down the Database before trial would prejudice Defendants’ ability to prepare for trial and “offend the court’s notion of fairness.”

Accordingly, “to avoid prejudicing the Defense and to follow through on the obligations the Government voluntarily undertook in this action,” the court ordered the Government to “continue to pay for the Database, through December 2014, providing the services agreed to by the parties in Terms and Conditions for Access to the [ ] Database.”

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