[Editor’s Note: This post was originally published on Ralph Losey’s e-Discovery Team® blog 10/5/2022, reposted with permission and our thanks.]
NOTICE OF STATUS OF PRIVILEGE REVIEW TEAM’S FILTER PROCESS AND PRODUCTION OF ITEMIZED LIST OF DOCUMENTS WITHIN PRIVILEGE REVIEW TEAM’S CUSTODY
BREAKING NEWS. The confidential Privilege Review Team Report shown below was filed today in Trump v. U.S.. It was filed under seal. It should have been kept from public view in Pacer, but was not. Before the error was corrected a reporter saw it and published it. So it is public now. For that reason only, I am free to reproduce it in full below.
https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.40.0.pdf
These kind of errors with Pacer and sealed documents are way too common. It was likely caused by human error by a court clerk, but the circumstances here are unknown, and may never be known. It could also have been a deliberate error, an intentional leak, but I doubt it. These kind of mistakes are easy to make. I wrote a long blog article about this problem earlier this year when it happened in a California District Court against another high-profile defendant. Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case – Part 3
The sealed warrant previously discussed involved ESI on Apple’s iCloud. The warrant was put on Pacer and could be seen by the news media, who have all such cases under constant surveillance. My three-part blog article calls for reform of leaky Pacer and the maze of complex, varying, local court rules governing filing under seal. The privacy rights of litigants on both sides of the v must be protected, both the government and accused, and both plaintiff and defendant.
In this Trump case nothing that urgent appears to have been disclosed. (Although I do find the reference to a “possible attorney, Rudy” to be funny in an ironic way.) This accidental disclosure is another example of the inadequacies of the Pacer e-filing system and court e-filing systems. They are not working as they should to protect confidential documents, especially documents the parties want to be filed under seal and not open to public disclosure.
As to the merits of the once-confidential Privilege Review Team Report, the document shows that standard, best practices have been followed by the DOJ Privilege Review Team. I’ve done hundreds of privilege reviews like this in civil cases. The DOJ team here is following standard protocols and taking conservative positions and following procedures designed to protect Trump’s potentially privileged documents. The DOJ proposals to the court on how to complete the process also follow standard protocols and best practices. All very reasonable and explained in a clear manner. I give high marks to the DOJ review team and their work so far in this case. But I give low marks, again, to Pacer and byzantine court rules on privacy, especially in criminal cases involving documents filed under seal.
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