Issuu

Volume 68, Issue 1

Brick-by-Brick: The Case for Foundational Discovery page 34

Notice of Elections for FY2022

2021 Nominations and Elections Committee W. West Allen President and Chair Anh Le Kremer President-elect Christian K. Adams Immediate Past President Kristen R. Angelos Circuit Vice President Dina T. Miller Circuit Vice President Robin B. Wagner Section Chair David A. Greene Division Chair Terence Liley Chapter Representative Kate Simpson Chapter Representative Pursuant to Bylaw 8, Sec. A1, the Nominations and Elections Committee is responsible for administering the procedures applicable to nomination and election of national officers of the Association during the annual election as prescribed in Article V, Section 3, of the Constitution and Bylaw 6. The Committee shall be composed of the President, who shall chair the Committee; President-elect; immediate past-President; two Vice Presidents for the Circuit designated by the President; a Division chairperson designated by the President-elect; a Section Chairperson designated by the President, and two Professional Chapter representatives designated by the President-elect.

The Nominations and Elections Committee (Committee) hereby gives notice that there will be an election for the following officers of the association for the fiscal year beginning October 1, 2021: President-elect; Treasurer; one Director who is a past or present Vice President for the Circuits; one Director who is a past or present Section or Division Chair; one Director who is a past or present chapter president; one Director who is, at the time of his or her election to the Board, age 40 years or younger; one Vice President for each of the 12 circuits; and the Delegate to the ABA House of Delegates. Please review specific qualifications for each position at www.fedbar.org/qualifications. All officers will assume their elected position on October 1, 2021, and serve the following terms: President-elect and Treasurer, one year; four Directors, three years; Delegate to the ABA House of Delegates and Vice Presidents for the Circuits, two years. The incumbent President-elect will automatically succeed the incumbent President on October 1, 2021. Under Article V, Section 3 of the FBA Constitution, there are two ways for members to be listed on the ballot: • By nomination of the Nominations and Elections Committee; or • By petition: (1) a candidate for national office must be endorsed by not less than fifty members in good standing; and (2) a candidate for Vice President for the Circuit must be endorsed by not less than twenty members in good standing of chapters and/ or members at large in that particular circuit. Under Article V, Section 2 of the FBA Constitution, all members of the association at the time of nomination, whose dues are paid for the current fiscal year and who otherwise are in good standing, and meet all other qualifications, as may be required by the Constitution, Bylaws, and policies of the Association, shall be eligible as candidates for any elective office (including directors). The FBA welcomes and encourages diverse individuals to apply for leadership positions. Nominations Members interested in being nominated for office by the Committee shall complete and submit the FBA Application for National Office along with an electronic resume and photo to W. West Allen, Chair of the Nominations and Elections Committee, at elections@fedbar.org, to be received by February 1, 2021. The Committee shall require, at a minimum, that each candidate provide her/his name; place of professional practice (firm, office, court, agency or other); preferred mailing address; contact telephone number; facsimile number; e-mail address; date of FBA membership; and the title of the office sought. Also, the Application shall provide space for a candidate to provide a biographical sketch of his/her qualifications for the office that should include 1) why he or she is seeking national office (2) a description of the candidate’s FBA activities and leadership positions; (3) professional experience and awards received; (4) other volunteer activities; (5) what is one significant issue

facing the FBA and, as a leader, how would you address the issue? The biographical statement is limited to one page electronic document no larger than 8.5”X11” using 12-point font. By February 28, 2021, the Committee shall nominate one or more members in good standing for each of the elective offices becoming vacant for the coming term. By April 1, 2021, the Committee shall cause to be mailed or electronically sent to each member in good standing—either in The Federal Lawyer or otherwise—notice of the upcoming annual election and of the offices to be filled therein; of the Committee’s nominations for those offices; and the manner and time by which nominations of candidates may be made by petition as provided in Article V, Section 3.b. of the Constitution and Bylaw 6(C). Petitions Members who have not been nominated for office by the Committee, but who wish to be placed on the ballot for national office, may do so by delivering to W. West Allen, Chair of the Nominations and Elections Committee, at elections@fedbar.org, a petition, including an Application, specifying the office being sought and bearing the required number of signatures indicated previously. Petitions must be received by April 25, 2021. Election In accordance with Bylaw 6(D), by June 15, 2021, the Committee shall cause a Notice of Election to be mailed or transmitted electronically to each member of the Association in good standing. The notice shall list the names of all nominated candidates and candidates by petition in alphabetical order under each elective office. The notice also shall contain such instructions as necessary for members to cast their votes as prescribed by policy adopted by the Board of Directors. Completed ballots shall be received by the Chair of the Committee or by such person as designated by the Chair no later than June 30, 2021. The Committee shall review and certify the tabulated votes and report as elected the candidate for each office who has received a plurality of the votes cast for that office by July 1, 2021. In the event that any deadline herein specified is a Saturday, Sunday, or legal federal holiday, the next succeeding business day shall substitute for that specific deadline.

Volume 68, Issue 1

EDITORIAL BOARD

Editor in Chief Andrew Doyle doyle_andrew@msn.com Associate Editor James W. Satola jsatola@roadrunner.com Managing Editor Lynne G. Agoston (240) 404-6488 social@fedbar.org

January/February 2021: Civil Rights Issue

Book Review Editors Heaven C. Chee Soledad M. Valenciano Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Joanna Fox Sheila Hollis Christopher Lucca Bruce McKenna Anne Perry Dalmacio Posadas Elizabeth Turnbull Susan Yorke Columns Editor Ira Cohen Senior Proof Editor Peter Mansfield Proof Editors Kristine Adams-Urbanati Sarika J. Angulo Ellen Denum Sara Gold Niles Illich Jeffrie Boysen Lewis Jon Jay Lieberman Glenda McGraw Regnart Amanda Thom Jeremy Stone Weber The Federal Lawyer (ISSN: 1080-675X) is published bimonthly six times per year by the Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA, 22201 Tel, (571) 481-9126, Fax (571) 481-9090, Email: social@fedbar.org. Subscription Rates: $14 of each member’s dues is applied toward a subscription. Nonmember domestic subscriptions are $50 each per year; foreign subscriptions are $60 each per year. All subscription prices include postage. Single copies are $5. “Periodical postage paid at Arlington, VA… and at additional mailing offices.” “POSTMASTER, send address changes to: The Federal Lawyer, The Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA 22201.” © Copyright 2021 Federal Bar Association. All rights reserved. PRINTED IN U.S.A. Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/tflwritersguidelines for writers guidelines.

34 Brick-by-Brick: The Case 62 Best Practices in

for Foundational Discovery

Virtual Proceedings

By Rebekah L. Bailey, Stephen J. Teti, and Kate A. Fisher

By Rachel C. Hughey and Tara D. Elliott

66 Federal Rules of

42 Availability of Treatment

and Rehabilitation in Federal Prison: The Critical Role of the Presentence Report

Evidence 902(13) and 902(14)—A Useful Tool for Electronic Data

By Marc Blatstein, D.P.M.; Fay F. Spence, J.D.; E.J. Hurst II, J.D.; and Maureen Baird

By Jordi C. Martínez-Cid

54 Demystifying the

Civil Deposition By John R. Byrne

January/February 2021 • THE FEDERAL LAWYER • 1

Federal Bar Association COLUMNS 3 President's Message

The Constitution Empowers Us: Federalism and Protecting Civil Rights Through Diffused Government By W. West Allen

5 Washington Watch

How Trump Broke the Judicial Nominations Record By Bruce Moyer

6 At Sidebar

Civility in Our Profession

PROFILES 24 Hon. Joan N. Ericksen

Senior U.S. District Judge, District of Minnesota by Jeya Paul

30 Hon. Ortrie D. Smith Senior U.S. District Judge, Western District of Missouri by Steven Wolfe

BOOK REVIEWS

70 Originalism as Faith

By Hon. Karoline Mehalchick

Reviewed by Diego M. Pestana

8 Bankruptcy Brief

72 Defender in Chief: Donald Trump’s Fight for Presidential Power

Bankruptcy 2004 Examinations and Why You Want to Use Them By Hon. Elizabeth L. Gunn and Elizabeth G. Smith

10 Diversity & Inclusion

Reflecting on the Diversity & Inclusion Committee’s Police Liability Programs By Kiera Murphy and Katherine Earle Yanes

12 Focus on Indian Law

The Far End of the Trail of Tears: McGirt v. Oklahoma By Joel West Williams

16 FBA Outreach

Add a Judge and Stir: Chapters Challenged to Advance Civics Education With “Toolkit”

Reviewed by Louis Fisher

74 The Year of Peril: America in 1942

Reviewed by Henry S. Cohn

DEPARTMENTS

76 Supreme Court Previews

FBA MEMBER NEWS

82 Sections & Divisions 85 Chapter Exchange 88 Member Spotlight

By Cathy Barrie

18 Commentary

Rethinking Reasonable: Recognizing a Prisoner’s Expectation of Privacy Under the Fourth Amendment By Bradley Taylor

22 Tribute to RBG

Heroes Never Die: How RBG Can Live On By Rupa G. Singh

2 • THE FEDERAL LAWYER • January/February 2021

1220 N. Fillmore St., Ste. 444 Fourth Circuit Arlington, VA 22201 Kacy L. Hunt Ph: (571) 481-9100 • F: (571) 481-9090 Hannah Rogers Metcalfe fba@fedbar.org • www.fedbar.org Fifth Circuit BOARD OF DIRECTORS Mark L. Barbre President • W. West Allen Paul D. Barkhurst wwa@h2law.com Sixth Circuit President-Elect • Anh Le Kremer Daniel J. Donnellon anh.kremer@cdirad.com Donna J. Mikel Treasurer • Matthew C. Moschella Seventh Circuit mcmoschella@sherin.com Kevin G. Desharnais Ernest T. Bartol Melissa N. Schoenbein etbartol@bartollaw.com Eighth Circuit Jeanette M. Bazis David A. Goodwin jbazis@greeneespel.com Adam Hansen Joey Bowers Ninth Circuit jbowersfba@gmail.com Laura A. Conover Kevin A. Maxim Darrel J. Gardner kmaxim@maximlawfirm.com Tenth Circuit Glen R. McMurry Kristen R. Angelos glen.mcmurry@dinsmore.com Hon. Suzanne Mitchell Hon. Karoline Mehalchick Eleventh Circuit karoline_mehalchick@pamd.uscourts.gov Lauren L. Millcarek Adine S. Momoh Oliver Alan Ruiz adine.momoh@stinson.com D.C. Circuit John R. Thomas Patricia D. Ryan jt@fed-lit.com Jessica R. Toplin Jessica R. Toplin SECTION AND DIVISION CHAIRS jtoplinfba@gmail.com Chair, Sections and Divisions Hon. Mimi E. Tsankov Council (personal capacity) To Be Appointed mimi.tsankov@gmail.com Admiralty Law Christie C. Varnado Scott Bluestein cvarnado@seibelsfirm.com Alternative Dispute Resolution Michael S. Vitale Bryan J. Branon mvitale@bakerlaw.com Antitrust and Trade Regulations Ex Officio Members Vacant Christian K. Adams Banking Law cadams@adamskrekllp.com Christopher Bellini Hon. Barry W. Ashe Bankruptcy Law barry_ashe@laed.uscourts.gov Christopher Sullivan Laura A. Conover Civil Rights Law laura@conoverlawpllc.com Robin B. Wagner Anna W. Howard Corporate and Association Counsel anna.howard@uga.edu David Greene Nathan A. Olin Criminal Law nate@oliplaw.com E.J. Rymsza NATIONAL STAFF Environment, Energy & Natural Executive Director Resources Stacy King Vacant sking@fedbar.org Federal Career Service Director of Membership and Chapters Adam Hill Dominick Alcid Federal Litigation dalcid@fedbar.org Nicole Deese Newlon Managing Editor Government Contracts Lynne G. Agoston Vacant social@fedbar.org Health Law Outreach and Foundation Manager Robert Rappel Cathy Barrie Immigration Law cbarrie@fedbar.org Mark Shmueli Operations Manager Indian Law Holly Delidle Ann E. Tweedy hdelidle@fedbar.org Intellectual Property Law Director of Sections and Divisions Ira Cohen Mike McCarthy International Law mmccarthy@fedbar.org Beth Persky Marketing Director Judiciary Jennifer Olivares Hon. Michael J. Newman social@fedbar.org Labor and Employment Law Conference Manager TJ McGrath Caitlin Rider crider@fedbar.org Law Student Glen R. McMurry Sr. Director of Professional Development LGBT Law Melissa Schettler Brandon King mschettler@fedbar.org Qui Tam Program Coordinator R. Scott Oswald Ariel White Securities Law awhite@fedbar.org Liam O’Brien Membership Specialist Senior Lawyers Miles Woolever Steve Miller mwoolever@fedbar.org Social Security Law To Be Appointed VICE PRESIDENTS FOR THE CIRCUITS First Circuit State and Local Government Scott P. Lopez Relations Oreste R. Ramos Andrew S. Ballentine Second Circuit Taxation Olivera Medenica Robert Russell Dina T. Miller Transportation and Transportation Security Law Third Circuit Steve Osit Christian T. Haugsby Frank J. McGovern Veterans and Military Law Maura Clancy Younger Lawyers Anna W. Howard

President’s Message

The Constitution Empowers Us: Federalism and Protecting Civil Rights Through Diffused Government By W. West Allen

W. West Allen is an intellectual property litigator and counselor in Las Vegas who represents a wide variety of international clients in federal courts. He served as chair of the FBA’s Government Relations Committee for seven years and has served as a member of the FBA’s board of directors for many years. In 2016, Allen received the FBA’s President’s Award for longstanding service to the FBA and as chair of its Government Relations Committee.

The first constitutional principle of popular sovereignty necessitates that the people who charter government have a voice in the decisions that impact their lives.1 Yet within large nations are people with diverse voices, differing opinions, and the constant concern that consensus is unavailable. This can lead to a concentration of power and disunity that, in time, threatens the rights of all people. The founders understood that a successful republic must be vigilant against a large country’s natural tendency to either splinter into disharmonious factions or centralize governmental power to control disparate groups from afar. How would America secure freedom that protects minority voices through orderly self-government on the one hand, and, on the other hand, avoid tyranny? The answer brings us to the second foundational principle of the U.S. Constitution: Federalism. The precept of federalism as a system of government is a strategic compromise that divides political power and responsibilities between a centralized national authority and dispersed regional ones. Federalism links people and institutions by mutual consent, without sacrificing individual identities. As a form of social organization, federalism has come to mean an arrangement in which two or more governing bodies share power to achieve mutual benefits. But federalism is more than this. To truly understand federalism, it is helpful to begin with the original meaning of the term. “Federalism” derives from the Latin word, foedus, meaning an “alliance,” “treaty,” “compact,” or, more specifically, a “covenant.” Foedus comes itself from an older Latin word, fides, meaning “trust,” “faith, “honor,” or “reliability.” The concept reflects a mutual relationship with privileges and responsibilities on both sides. “Federalism,” therefore, implies a collective political covenant. What is the covenant between people and government? Why bifurcate the authority of the state? The first answer is in the Constitution. The people are the

legitimate wellspring of power, and it is from them that government is charted. In America, government is charted by The People for the express purpose set forth at the beginning of the U.S. Constitution—namely, “to secure the Blessing of Liberty to ourselves and our Posterity.”2 The people have entrusted their government with their collective sovereign authority based on the express understanding and promise that government will accomplish this purpose. As to the second question, the people have divided their delegated sovereign authority between dual governments, national and state, because of the paradoxical and cyclical nature of government itself. Preservation of liberty requires law. Law, not honored, requires enforcement. Enforcement of law requires power. And power entrusted to individuals, wielded unwisely, leads to tyranny and loss of liberty. James Madison understood America’s dilemma all too well. “If men were angels, no government would be necessary,” Madison remarked, and “[i]f angels were to govern men, neither external nor internal controls on government would be necessary.”3 Madison knew the difficulties of self-government and the perils future generations would face to hold on to liberty. Consequently, he and the founders developed a political system that would consecrate and fix this trust—this covenant—between the American people and their government in perpetuity. The people would grant power to a new dual government premised upon that government’s promise to safeguard and defend the people’s liberty and civil rights from all enemies, including all future governments themselves. When the United States cut ties with Britain, the founders wanted nothing to do with the British form of “unitary” government. Under a unitary regime, all power originates from a centralized national government (i.e., Parliament) and is delegated to local governments. The founders initially chose the opposite form of government, a confederation where all power was held regionally. In time, the U.S. Constitution and January/February 2021 • THE FEDERAL LAWYER • 3

its Bill of Rights became the political balance in self-government to preserve liberty through orderly national government but with safeguards against overreaching national power that could naturally devolve into tyranny. The U.S. Constitution—with its structural framework, enacting preamble, seven articles, and original 10 amendments—is as elegant as it is brilliant. It both empowers people and protects their civil rights. The covenant contemplated in federalism makes this possible. Federalism as a system of governance is found throughout the U.S. Constitution and is expressly stated in its Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”4 In their attempt to balance order with liberty, the founders identified several additional reasons for creating this form of dual federalism in government, or division of power between national and state governments. First, it disperses access to power and political authority, thereby establishing a bulwark against centralized government and self-serving individuals who might seek to consolidate and control it. Second, it provides local citizens a meaningful stake in government by affording greater participation and control in their politics, including the ability to direct resources based on the specific needs and beliefs of their local communities. Third, it permits state democracies to become laboratories for new ideas in governance and the resolution of regional problems. Fourth, in allowing regional autonomy and local allocation of government resources, it eases political tensions and protects against succession. Fifth, it promotes state and national unity by requiring multiple levels of state and national government to adhere to shared principles of mutual respect and civil rights. Thus, federalism is not merely a means to diffuse power; it is a principle to elevate and preserve self-government, thereby protecting the rights and privileges of all citizens. Federalism preserves and encourages the voices of both majorities and minorities, regardless of race, religion, or region, and unifies a vast, diverse republic. It accomplishes this best when our elected leaders deliver on the original promise of government to protect the civil rights and individual liberties of all citizens uprightly and equally at all levels of government. America’s elected leaders must wield the people’s authority not to usurp power, but to fight for freedom. Thomas Jefferson believed and taught this: “I consider the foundation of the Constitution as laid on this ground: that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”5 America’s Constitution circumscribes government from taking boundless fields of power. Our nation is strengthened and unified as its leaders remember and honor their original covenant to safeguard freedom and the civil rights of all citizens. This is the promise of federalism. 

Endnotes The 2020-2021 FBA presidential messages will focus on five foundational principles of the U.S. Constitution: popular sovereignty, federalism, separation of powers, the Bill of Rights, and the rule of law.

4 • THE FEDERAL LAWYER • January/February 2021

U.S. Const. pmbl. The Federalist No. 51 ( James Madison). 4 U.S. Const., amend. X. 5 Thomas Jefferson Letter to George Washington, Feb. 15, 1791, Opinion on Bill for Establishing a National Bank. Jefferson later famously wrote to Dr. Benjamin Rush, on Sept. 23, 1800: “I have sworn upon the alter of God eternal hostility against every form of tyranny over the mind of man.” 2 3

Editorial Policy The Federal Lawyer is the magazine of the Federal Bar Association. It serves the needs of the association and its members, as well as those of the legal profession as a whole and the public. The Federal Lawyer is edited by members of its Editorial Board, who are all members of the Federal Bar Association. Editorial and publication decisions are based on the board’s judgment. The views expressed in The Federal Lawyer are those of the authors and do not necessarily reflect the views of the association or of the Editorial Board. Articles and letters to the editor in response are welcome.

Washington Watch

How Trump Broke the Judicial Nominations Record By Bruce Moyer

One of the Trump administration’s most notable legacies will be the record number of judges appointed to the federal bench. In four years, the Trump White House nominated and Senate Republicans confirmed associate justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court, along with 54 judges to appeals courts, 173 judges to district courts, and three judges to the Court of International Trade—a total of 233 appointments. This number represents more than one-third of all active federal lifetime judgeships in the United States, the greatest number by any president going back to Ronald Reagan. The restocking of the federal judiciary by the Trump administration was the product of many forces, including relentless efforts by Senate Majority Leader Mitch McConnell, R-Ky., and his Judiciary Committee chairs, Sen. Chuck Grassley, R-Iowa, and Sen. Lindsey Graham, R-S.C. Throughout the Trump administration, McConnell prioritized Senate floor time to debate and vote on judicial nominates, frequently pushing aside legislative business. “Leave no vacancy behind,” McConnell quipped once during a radio interview, only half-jokingly. Even before Trump entered office, McConnell prepared for a ramp-up in federal bench appointments if Republicans regained the White House in 2016. The blockade of the nomination of circuit appeals judge Merrick Garland to the Supreme Court was only the tip of the iceberg. Scores of unfilled judgeships were left behind by the Obama administration, caused mainly by Republican obstruction of Obama nominees in committee and on the floor. That permitted Trump to enter the White House in 2017 with 112 vacancies. By contrast, President Obama assumed the presidency with only 53 vacancies left by President Bush. In addition, the Trump administration entered the White House with firm ideas about who to nominate to the federal bench and when, with lists of potential Supreme Court picks as well as comprehensive lists and intelligence on hundreds of potential district and circuit nominees compiled by allies outside 1600 Pennsylvania Avenue. Judicial nominees were named in waves of White House announcements. Under the

McConnell playbook, circuit appeals court nominees always received priority in hearing scheduling and floor consideration. By July 2020, McConnell had whittled down circuit appeals court vacancies to zero and was starting a more forceful effort on district court nominees hailing from red states. Changes in Senate rules also favored McConnell’s efforts. In 2013, then-Majority Leader Harry Reid installed the first rule changes that accelerated judicial consideration of circuit nominees. McConnell broadened those rules to Supreme Court and district court nominees after he succeeded Reid and power switched hands in the Senate in 2015. Grassley also trimmed back the panel’s century-old tradition of blue slips, no longer waiting for home state senators to signal their approval of circuit nominees before pushing ahead with hearings. (The blue slip tradition still continues in the consideration of district court nominees.) President-elect Joe Biden will take office on January 20 with far fewer vacancies than President Trump did. But those vacancies will likely arise in the coming months as some judges announce their retirement or secure senior status, having earlier forestalled such decisions with the hope of a Democratic president taking office. In December, the Biden transition team invited senators to recommend candidates for district court positions, particularly those “whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.” Meanwhile, the top Republican and Democratic leadership posts on the Senate Judiciary Committee will change in the new Congress. Sen. Dianne Feinstein, D-Calif., has announced that she will relinquish the role as the top Judiciary Democrat. On the Republican side, Grassley will once again become the top GOP member because of chairmanship term limits under Senate Republican rules. In the House, Rep. Jerrold Nadler, D-N.Y., is expected to continue as Judiciary Committee chair, with Rep. Jim Jordan, R-Ohio, serving as ranking member.  January/February 2021 • THE FEDERAL LAWYER • 5

At Sidebar

Civility in Our Profession By Hon. Karoline Mehalchick

Each attorney admitted to the U.S. District Court for the Middle District of Pennsylvania is required to read and sign a Code of Professional Conduct that includes the following promise:

Hon. Karoline Mehalchick is a U.S. magistrate judge for the U.S. District Court for the Middle District of Pennsylvania. She was appointed to the bench on July 15, 2013. Prior to entering on duty with the court, she had an extensive trial and appellate practice and represented a broad range of clients in both state and federal courts, including the U.S. Supreme Court. She serves on the board of directors for the FBA and is a past circuit vice president and a past president of the Middle District of Pennsylvania Chapter.

I will treat with civility and respect the lawyers, clients, opposing parties, the court and all the officials with whom I work. Professional courtesy is compatible with vigorous advocacy and zealous representation. Even though antagonism may be expected by my client, it is not part of my duty to my client.1 Other federal district courts have similar pledges. The District Court for the Middle District of Alabama has a General Order setting forth Standards for Professional Conduct,2 which requires counsel, in part, to … [P]ractice our profession with a continuing awareness that our role is to advance the legitimate interests of our clients. In our dealings with others, we will not reflect the ill feelings of our clients. We will treat all other counsel, parties, and witnesses in a civil and courteous manner, not only in court, but also in all other written and oral communications. The Central District of California, in the Preamble to its Civility and Professionalism Guidelines, recognizes a discernible erosion of civility and professionalism in our courts in recent years.3 The Preamble goes on to note the following: This disturbing trend may have severe consequences if we do not act to reverse its course. Uncivil behavior does not constitute effective advocacy; rather, it serves to increase litigation costs and fails to advance the client’s lawful interests. Perhaps just as importantly, this type of behavior causes the public to lose faith in the legal profession and its ability to benefit society. For these reasons, we find that civility and professionalism among advocates, between lawyer and client, and between bench and bar are essential to the administration of justice.

6 • THE FEDERAL LAWYER • January/February 2021

Appended to the Local Rules of Court for the Eastern District of Michigan are a set of Civility Principles,4 which state, in pertinent part, that in “fulfilling an attorney’s duty to represent a client vigorously, he must be mindful of his obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner.” This is just a sample of what many state and federal courts require of the attorneys that practice in those courts. It is easy, sometimes, for lawyers to lose sight of these guidelines. Practicing law very often means engaging in an adversarial process, whether in negotiating the terms of a contract, engaging in discovery, arguing a motion before a judge, or making a closing argument to a jury. That process naturally means being oppositional and argumentative at times. Counsel is, after all, retained to advocate for their client, not to concede to their opponent’s position. What the practice of law does not have to be, however, is uncivil, unreasonable, discourteous, or antagonistic. Being a zealous advocate does not always mean being the loudest, most dramatic, or most controversial lawyer in the room. It does not mean closing your ears and mind to everything your adversary is saying. It does not mean being disrespectful to your opponent or refusing to hear other positions in a case. After all, if you listen to and hear your opponent’s position, you might understand your own better. You will be better prepared to distinguish it and to highlight the strengths of your own case. Being discourteous or uncivil does not usually lead to better outcomes in cases. Such behavior tends to drive counsel apart. It generally prolongs litigation and increases costs while decreasing efficiency. If you are a new lawyer, this behavior might damage your barely formed reputation in the legal community, and first impressions often last a very long time. Moreover, you may be damaging your relationships with colleagues. In today’s unprecedented and uncertain times, civility in our profession is perhaps more important than ever. Civility is a backbone of the legal profession, and treating your opposing counsel with respect and courtesy while navigating the world of law should be standard in your practice, which is why so many courts across the country have seen fit to include such guidelines in their local rules. The best advocates may be

zealous and fierce, but they are also professional and civil. They do not insult each other or engage in ad hominem attacks. Rather, they use the facts and the law to craft intelligent and logical argument in support of their client’s position. This is the better model for the practice of law. Zealously advocate for your client, of course, but do not conflate that advocacy with unnecessary antagonism. The very nature of the practice of law is one of conflict, adversity, and challenge. It is often high-pressured and challenging. Practicing with respect and courtesy while resolving your client’s problems can mean doing so in a far more efficient and logical manner. 

Endnotes

www.pamd.uscourts.gov/sites/pamd/files/forms/conduct.pdf/. General Order re Standards for Professional Conduct, U.S. District Court for the Middle District of Alabama ( Jan. 8, 1999), https://www.almd.uscourts.gov/general-orders/general-order-restandards-professional-conduct/. 3 Civility and Professionalism Guidelines, U.S. District Court for the Central District of California, https://www.cacd. uscourts.gov/attorneys/admissions/civility-and-professionalismguidelines/ (last visited Nov. 30, 2020). 4 In re: Civility Principles, Administrative Order 08-AO-009, U.S. District Court for the Eastern District of Michigan ( Jan. 23, 2008), https://www.mied.uscourts.gov/PDFFIles/08-AO-009. pdf/. 2

Code of Professional Conduct, U.S. District Court for the Middle District of Pennsylvania (Nov. 19, 2012), https://

CALL FOR NOMINATIONS TO THE FBA ISSUES AGENDA FBA members—as well as chapters, sections, and divisions—are invited to nominate issues for inclusion in the FBA Government Relations Issues Agenda for 2021-22.

The deadline for all agenda nominations is Friday, March 26, 2021.

FOR FULL DETAILS, PLEASE VISIT

www.fedbar.org/government-relations/policy-priorities

January/February 2021 • THE FEDERAL LAWYER • 7

Bankruptcy Brief

Bankruptcy 2004 Examinations and Why You Want to Use Them By Hon. Elizabeth L. Gunn and Elizabeth G. Smith

The filing of bankruptcy by an adverse party can result in a major interruption to the “normal” process and procedure of litigation. It can cause delays, additional costs, and procedural nightmares. In cases where the filing occurs prior to the initiation of litigation, however, or where discovery has not opened or concluded, the bankruptcy can provide parties with an otherwise unavailable form of discovery—the Federal Rules of Bankruptcy Procedure Rule 2004 examination, commonly known as a “2004 Exam.”

Why Would You Want to Take a 2004 Exam?

Hon. Elizabeth L. Gunn was appointed to serve as the bankruptcy judge for the District of Columbia on Sept. 4, 2020. Before her appointment, Judge Gunn served as an assistant attorney general for the Commonwealth of Virginia. Prior to joining the Office of the Attorney General, she practiced law in Richmond, Va., at Sands Anderson PC and McGuireWoods LLP. In 2017, she was recognized by the American Bankruptcy Institute as a member of its inaugural class of 40 Under 40. Judge Gunn currently serves as the secretary for the FBA’s Bankruptcy Section. Elizabeth (Beth) G. Smith concentrates her practice in the area of creditor’s rights in both federal bankruptcy courts and state court. She has been a past member of the FBA’s National Board of Directors, Fifth Circuit vice president, membership chair, and Constitution and Bylaws Committee chair. Currently, she serves on the FBA San Antonio Chapter as special projects co-chair.

When a bankruptcy case is filed, creditors may want to obtain discovery from the debtor, the debtor may want to obtain discovery from creditors, and either may want to obtain discovery from third parties. Bankruptcy cases rarely are filed when relationships between adverse parties are neat and tidy. A 2004 Exam permits examination of any party without the requirement of a pending adversary proceeding or contested matter in the bankruptcy case.1 2004 Exams are frequently utilized to conduct enough discovery to see whether a reasonable basis exists for the assertion of and perhaps the filing of an adversary proceeding or lawsuit. In doing so, litigants can avoid the Fed. R. Civ. P. Rule 11 trap.

The Process Fed. R. Bankr. P. 2004(a), (“Rule 2004”) provides that an examination may be “[o]n motion of any party in interest”. The term “party in interest” is often used in bankruptcy parlance but is not specifically defined in § 101, of the Bankruptcy Code.2 Courts have generally construed the term “party in interest” liberally. Further, Rule 2004 provides that “entities” may be examined. An “entity” includes person, estate, trust, governmental unit, and U.S. trustee.3 A “person” includes individuals, partnerships, and corporations.4 Corporations include unincorporated and incorporated associations.5 That is not the limit though, as discovery under Rule 2004 also extends beyond the debtor to people associated with him as well as those individuals who may have had business dealings with the debtor. The Rule 2004 scope is much wider than may commonly be accomplished

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through discovery under the Federal Rules. Although Rule 2004(a) seems to require a motion and order, in many jurisdictions, local rules or standing orders bypass this requirement. Refer to the local rules of the district and division in which the case is pending to determine the noticing requirements to use. Rule 2004 affords both debtors and creditors the broad rights of examination of a third party’s records. But, third parties subject to examination pursuant to Rule 2004 are only those persons possessing knowledge of the debtor’s acts, conduct, or financial affairs so far as this relates to debtors proceeding in bankruptcy.6 A nondebtor may be subpoenaed to attend a Rule 2004 examination in the district where he resides based on a 2004 Exam order issued in a different district where the underlying bankruptcy case is pending.7 The process can be onerous but effective. The proper procedure is to obtain the Rule 2004 order in the district where the underlying bankruptcy case is pending, to file a certified copy of the Rule 2004 order in the district where the witness to be examined resides, and to obtain issuance of a subpoena from the bankruptcy court in the district where the witness resides compelling the witness to attend a 2004 Exam in the district where the witness resides.8

Who Is Allowed to Attend and Ask Questions Sometimes issues of who may attend a 2004 Exam and who may ask questions arise. Just like meetings of creditors conducted under section 341 of the Bankruptcy Code, 2004 Exams are proceedings generally open to the public.9 It is critical to the functioning of the bankruptcy process that 2004 Exams of debtors and third parties authorized by the bankruptcy court be open to the public.10 The public includes not only those parties in interest in the bankruptcy case but any interested party, including press.11

Scope of the 2004 Exam The scope of the inquiry under Rule 2004 is very broad, and great latitude of inquiry is ordinarily permitted.12 The policy behind Rule 2004 is for an open-air examination.13 As a result, 2004 Exams have come to be known as “broad fishing expeditions” into

a party’s affairs for the purpose of obtaining information relevant to the administration of the bankruptcy estate.14 A 2004 Exam is different than discovery under the Federal Rules, and as a result, procedural safeguards of witnesses are at a minimum.15 For example, the courts have held that under Rule 2004, the deponent is not entitled to certain rights afforded automatically under the Federal Rules, such as the right to counsel and the right to object to questions posed.16 While the scope of the 2004 Exam should not be limited by whether the information sought to be discovered would be admissible at trial, otherwise admissible testimony taken during a 2004 Exam might not be admissible unless a showing can be made that the examination was conducted fairly and in compliance with the Federal Rules17. Despite its characterization as being tantamount to a fishing expedition, a 2004 Exam must be both relevant and reasonable.18 Matters having no relationship to the debtor’s affairs or the administration of the bankruptcy estate are not proper subjects of a 2004 Exam.19 Further, any request that is seen as being overly burdensome or oppressive or used for the purpose of harassment or abuse will not be approved. It is an abuse of Rule 2004 if the primary motive of a 2004 Exam is to use it in litigation for another cause of action, such as to further a case in state court.20 If there are parallel interests in the bankruptcy and the other cause of action, however, the 2004 Exam is likely to be proper. Additionally, those seeking to examine witnesses or records pursuant to Rule 2004 examinations are subject to the applicable evidentiary privileges.21 Bankruptcy Rule 9018 provides that, on motion or its own initiative, with or without notice, the court may issue an order that requires protection of the estate or entity in respect of a trade secret or other confidential research, against scandalous or defamatory matters contained in any paper filed in a case under the Code, or to protect governmental matters that are made confidential by statute or regulation.22 Many times, the examinee and other parties will attempt to quash the 2004 Exam. While the 2004 Exam is normally authorized by the bankruptcy court without advance notice, this does not deprive the prospective deponent of the right to object after the motion is granted or to file a motion for protective order.23 Even if the Federal Rules do not apply to a 2004 Exam, the lack of the procedural framework for Rule 2004 proceedings may make borrowing from the applicable Federal Rules appropriate, so that discovery objections under the Federal Rules may be used.24 For example, the 2004 Exam is subject to a motion to quash a requirement to produce electronically stored information based on Fed. R. Civ. P. 26’s proportionality requirements added by the 2015 amendments to the Rule. The fishing expedition will be tempered in such cases. Ethical issues can arise if a subpoena duces tecum is served on a nonparty person who has no ability to produce documents. The form of subpoena is governed by Fed. R. Civ. P. 45 as codified in Bankruptcy Form 2540. Instructions and limitations of the nonparty’s duties to produce documents are listed on the back of the subpoena. But what happens if the nonparty calls opposing counsel and asks for “help” in understanding the subpoena? Counsel must decide whether to advise a nonclient about ways to object to the subpoena or to repeatedly tell the nonparty to seek counsel they cannot afford.

evidence related to that proceeding.25 Once an adversary proceeding or particular contested matter is underway, discovery sought in furtherance of that litigation is subject to the Federal Rules rather than Rule 2004.26 Access to discovery through the Rule 2004 Exam process is a necessary tool when a creditor must make a decision about filing an adversary proceeding or contested matter or the viability of reorganization. Use of the 2004 Exam is a fair process allowing discovery early in the fast-moving bankruptcy process. Special thanks to Steve Peirce and the late Jack Partain of Norton Rose Fulbright for the use of their article “Bankruptcy Rule 2004 Examinations” in the preparation of this article. Peirce is a member of the FBA Bankruptcy Section Council. 

Endnotes In re Symington, 209 B.R. 678, 684 (Bankr. D. Md. 1997). 11 U.S.C. §§ 101-1532. 3 See 11 U.S.C. § 101(15). 4 See 11 U.S.C. § 101(41). 5 See 11 U.S.C. § 101(9). 6 See Fed. R. Bankr. P. 2004(b). 7 Symington, 209 B.R. at 684; In re Texas Int'l Co., 97 B.R. 582, 584 (Bankr. C.D. Calif. 1989; In re Fred Ayers Co., 266 B.R. 577, 563-64 (Bankr. M.D. Ga. 2011); and In re Correra, 589 B.R. 76, 109-113 (Bankr. N.D. Tex. 2018). 8 Symington, 209 B.R. at 691; Texas Int'l, 97 B.R. at 585; and Correra, 589 B.R. at 110. 9 Symington, 209 B.R. at 694. 10 Id. 11 Symington, 209 B.R. at 690. 12 In re Fearn, 96 B.R. 135, 138 (Bankr. S.D. Ohio 1989). 13 Matter of M4 Enters, Inc. 190 B.R. 471, 476 (Bankr. N.D. Ga. 1995). 14 In re Handy Andy Home Improvement Ctrs., Inc., 199 B.R. 376, 380 (Bankr. N.D. Ill. 1996). 15 In re Coffee Cupboard, Inc., 128 B.R. 509, 514 (Bankr. E.D.N.Y. 1991). 16 In re McLaren, 158 B.R. 655, 658 (Bankr. N.D. Ohio 1992). 17 Symington, 209 B.R. at 687. 18 Id at 684. 19 In re Fin. Corp. of Am., 119 B.R. 728, 733 (Bankr. C.D. Calif. 1990). 20 Snyder v. Society Bank, 181 B.R. 40, 41 (Banker S.D. Tex. 1994). 21 Fin. Corp. of Am., 119 B.R. at 733. 22 Handy Andy, 199 B.R. at 381. 23 Symington, 209 B.R. at 686. 24 In re Valley Forge Assoc., 109 B.R. 669, 675 (Bankr. E.D. Pa. 1990). 25 M4 Enters., 190 B.R. at 475. 26 Valley Forge Assoc., 109 B.R. at 674. 1 2

Rule 2004 Ceases to Apply Once an Adversary Is Filed The use of Rule 2004 is not unlimited or available at all times. Once the parties have commenced an adversary proceeding, they may not employ Rule 2004 as a discovery device by which to uncover January/February 2021 • THE FEDERAL LAWYER • 9

Diversity & Inclusion

Reflecting on the Diversity & Inclusion Committee’s Police Liability Programs By Kiera Murphy and Katherine Earle Yanes

Kiera Murphy is a Minneapolis attorney practicing in business litigation and white collar law at Faegre, Drinker, Biddle & Reath LLP. Katherine Earle Yanes is a partner at the Tampa law firm of Kynes Markman & Felman, P.A., practicing in the areas of criminal defense, appeals, and postconviction relief. Murphy and Yanes, both members of the FBA Diversity & Inclusion Committee, organized and co-moderated the programs that are the subject of this article.

George Floyd was a Black man who died at the hands of Minneapolis police officers on Memorial Day of 2020. Widespread protests followed, with chants of “I can’t breathe” reverberating in our consciences. The outrage over Mr. Floyd’s death sparked an ongoing national conversation on law enforcement training and liability. As part of that conversation, the FBA Diversity & Inclusion Standing Committee organized a two-part program to educate the legal community on use of force, racial profiling, and prosecutions of the police. Because the theme of this edition of The Federal Lawyer is civil rights, we want to again share the insights that were discussed during the presentations. And with the criminal trial of the police officers involved in George Floyd’s death approaching this spring, it is imperative to stay engaged with these issues. We thus hope that this article is educational for those of you who are not experienced with police liability issues, and for those of you who are, we hope that you continue to work toward justice and equity. The first panel featured three experts on police training and prosecution: • D r. Alex Del Carmen, the associate dean for the Tarleton State University School of Criminology, who has trained approximately 15,000 police officers and all the Texas police chiefs on racial profiling. • David Douglass, managing partner of the D.C. Sheppard Mullin office and deputy federal monitor over the New Orleans Police Department. • Andrew M. Luger, a former U.S. attorney for the District of Minnesota who oversaw the federal investigation into the police shooting of Philando Castile. The program began with several insights from Dr. Del Carmen on law enforcement training and oversight. First, he explained that the definition of “use of force” varies widely throughout the United States, with some police departments even deeming an officer merely removing his or her gun from its holster

10 • THE FEDERAL LAWYER • January/February 2021

a use of force. The use of force training that officers receive varies widely as well, with some departments analyzing how to approach different situations rather than going through physical exercises. Second, Dr. Del Carmen framed the question of racial profiling not as the motivation for a stop, but rather as the outcome of a stop. For example, if a given officer stops and searches 100 white men and 100 black men in a year but finds contraband on 50 percent of the white men versus 10 percent of the black men, the outcome of the officer’s searches begs the question of whether there was racial motivation. Likewise, focusing less on the motivation for a stop could avoid the question of whether the officer had a pretextual excuse for his or her actions. Mr. Douglass and Mr. Luger then spoke on the legal process surrounding law enforcement prosecutions. Mr. Luger first answered the question of what else had to be investigated when an encounter is videotaped. He told listeners that discerning a defendant’s intent is paramount. Important evidence of a defendant’s intent could be his or her statements to others in the moments just after the use of force happened. And he further explained that the public’s frustration with how long an investigation may take showed a not necessarily unjustified lack of trust in the criminal justice system. Mr. Douglass later discussed strategies for combatting racial bias in law enforcement prosecutions. He suggested breaking the incident down moment by moment for the jury, stressing at each point that the officer’s reaction stemmed from implicit bias regarding the victim’s race. All three speakers lastly discussed several solutions to increase law enforcement accountability. Dr. Del Carmen suggested that we implement universal training and guidance on use of force, when deadly force can be used, and behavior constituting racial profiling. Mr. Douglass and Mr. Luger thought that these solutions could decrease improper use of force (thus decreasing prosecutions), create a uniform legal standard by which to measure officers’ behavior, and shift law enforcement culture to one that emphasizes de-escalation techniques.

The second panel included three seasoned defense attorneys with deep experience in representing officers against criminal and civil liability: • D rew Findling, immediate past president of the National Association of Criminal Defense Lawyers, who also represents celebrities such as Gucci Mane and Cardi B. • Sharonda Williams, a former city attorney for the city of New Orleans. • Celeste Koeleveld, formerly a criminal division chief at the U.S. Attorney’s Office for the Southern District of New York and an executive assistant corporation counsel at the New York City Law Department. Mr. Findling discussed the unique facets of cases against law enforcement officers, including the rights officers have under Garrity v. New Jersey.1 As Mr. Findling explained, when a law enforcement officer or other public employee faces an accusation regarding employment-related activity, any statement the employee is required to make as a condition of their employment may not be used against the employee. Attorneys defending a law enforcement officer must be vigilant to ensure that the officer’s statement is not used in the course of a potential criminal investigation of the officer’s actions and does not taint the decision of whether to charge the officer with a crime. Mr. Findling also discussed the types of expert witnesses that may be important in a criminal case involving a law enforcement officer, such as use of force experts, human factors experts, and forensic enhancement experts. Ms. Williams and Ms. Koeleveld discussed the doctrine of qualified immunity, under which a law enforcement officer is protected from civil liability unless the officer violates clearly established statutory or constitutional rights of which a reasonable person would have known. The first step in the qualified immunity analysis is to determine whether there was a constitutional violation, while the second step asks whether the right was clearly established, or whether it was objectively reasonable for the officer to believe that the officer’s actions did not violate clearly established law. The rationale for this standard is to protect officers in high-pressure situations by allowing room for mistakes in judgment. The panelists also discussed whether the qualified immunity doctrine has been stretched too far in protecting all but the most egregious violations. Conversely, qualified immunity does not protect municipalities. The primary issues in cases involving agencies or municipalities are whether a plaintiff can demonstrate a pattern or practice, custom, or policy of a department that leads to constitutional violations. Alternatively, there may have been deliberate indifference or disregard of a known or obvious consequence of actions by officers in accordance with a pattern or practice of officers. The panelists next highlighted how systemic issues such as the training an officer received and the department’s policies can affect liability. Mr. Findling explained that in defending an officer against criminal liability, the training an officer has received—or has not received—may be critical to evaluating the officer’s actions. He stated that in order to defend law enforcement officers, a lawyer must be willing to “attack the system,” such as by filing public records requests and determining whether the training the officer received was inadequate. Officers may be placed in complex, life-and-death situations with very little education on how to handle those situations.

There may also be issues involving implicit bias and structural racism that the officer’s training may never have addressed. Training may also play a role in defending civil cases as well; sound training that the officer followed will support the defense of both the officer and the municipality, while if the officer deviated from the training he or she received, the municipality may not be able to defend itself. With that said, Ms. Koeleveld expressed that implicit bias training is a must at this point, and municipalities that do not provide such training are placing themselves at risk for claims. Training must also address use of force and what types of force are acceptable. The panelists likewise strongly supported providing officers with de-escalation training as well as hands-on training that simulates real-life scenarios, as opposed to just lectures. Along with the quantity and types of training officers receive, the panelists concluded with a discussion on other policy solutions. Ms. Williams discussed aspects of the consent decree the city of New Orleans entered into, which included, among other requirements, revised use of force policies, community policing, retention and hiring practices, body-worn cameras, and mandatory reporting policies. Ms. Koeleveld suggested the creation of a compensation fund, in which individuals who had suffered a harm, such as a wrongful conviction or an injury by law enforcement officers, could be compensated for the harm without requiring them to show fault or intentional wrongdoing by law enforcement. The recent deaths of Mr. Floyd and others at the hands of law enforcement officers have ignited protests, discussions, and calls for change across the country and throughout the world. As members of the legal profession, we are uniquely situated to educate ourselves about these complex and nuanced issues, share our knowledge with members of our community, and contribute to the national dialogue. We must seize this opportunity to transform a system that too often fails to protect the least privileged among us and not allow the chants of “I can’t breathe” to fade from our minds until justice is served. 

Endnotes 385 U.S. 493 (1967).

January/February 2021 • THE FEDERAL LAWYER • 11

Focus on Indian Law

The Far End of the Trail of Tears: McGirt v. Oklahoma By Joel West Williams

Joel West Williams is a citizen of the Cherokee Nation and a senior staff attorney at the Native American Rights Fund (NARF). He is also immediate past-president of the National Native American Bar Association and an adjunct professor of law at Vermont Law School. Prior to joining NARF, Williams was assistant counsel with the Pennsylvania Governor’s Office of General Counsel, where he represented the executive branch as a trial and appellate attorney. He was also senior legislative officer with the Cherokee Nation and director of its Washington, D.C., office. ©2020 Joel West Williams. All rights reserved.

It has always been part of the Oklahoma creation myth that Indian reservations are fundamentally incompatible with Oklahoma statehood. The state’s narrative— and sometimes that of federal officials—has been that Indian reservations were disestablished to pave the way for Oklahoma’s admission to the Union. The U.S. Supreme Court’s recent decision in McGirt v. Oklahoma1 finally corrected this false narrative and reaffirmed a central treaty promise of the United States.

Background The Indian Territory—as the area was called prior to Oklahoma obtaining statehood in 1906—was always intended to be a homeland for relocated Indian tribes. Unlike many other areas of the West acquired by the United States, there was no initial intention to create a new state in the Indian Territory. One of the tribes that relocated to the area in the first half of the 1800s was the Muscogee (Creek) Nation (“Creek Nation”). Much like the Cherokees, Chickasaws, Choctaws, and Seminoles, the Creeks were under assault by state governments in the Southeast, who were attempting to extinguish Indian title to land, asserting state governmental authority in tribal territories, and unlawfully imprisoning people—and the United States was doing nothing to protect the tribes. In the face of this untenable situation and existential crisis, all five of these tribes eventually entered into treaties with the United States, which, among other things, promised them homelands in the Indian Territory that would be forever beyond the reach of any state government. Accordingly, the promise of a homeland, held in fee simple and free of the interference of any state, was a treaty promise that some believed was the only hope for survival as a people. After the Creek Nation relocated to Indian Territory, that promise was reaffirmed in subsequent treaties with the United States. However, the non-Indian thirst for land and resources would arrive at their borders once again by the late 19th century. Non-Indians began squatting in the tribes’ reservations, and the United States refused to remove them as the treaties required. So, how did the continued existence of the Creek

12 • THE FEDERAL LAWYER • January/February 2021

Reservation become pivotal in this case? Mr. McGirt, a citizen of Seminole Nation, was convicted of several felony sex crimes in Oklahoma state court. The Major Crimes Act vests federal jurisdiction over certain crimes committed in Indian country by or against Indians. He sought post-conviction relief in state court, asserting that the crimes occurred within the boundaries of the Creek Reservation and, pursuant to the Major Crimes Act, the federal government, not the state, had jurisdiction over him for the offenses. The state district court denied his petition, and the Oklahoma Court of Criminal Appeals affirmed. Because the sexual offenses of which Mr. McGirt was convicted are included within the Major Crimes Act, the operative question was whether the Creek Reservation continued to exist after Oklahoma statehood. In the minds of many federal Indian law practitioners, for the U.S. Supreme Court to conclude that the Creek Reservation survived Oklahoma statehood required nothing more than straight-forward application of precedent. The well-established test from Solem v. Bartlett,2 which requires the clear intent of Congress to be expressed in order to disestablish an Indian reservation, was unanimously reaffirmed in an opinion authored by Justice Thomas in 2016.3 Unlike every other time the Court had found reservation diminishment or disestablishment, Oklahoma could not point to a textual provision expressing that congressional intent. Moreover, contrary to Oklahoma’s argument that Indian reservations were incompatible with its statehood, Indian reservations exist in every other western state. There is no question that Congress was acting to break up tribal land holdings across the United States around the time of Oklahoma statehood. The biggest piece of legislation was the General Allotment Act of 1887. Congress wanted to break up the land holdings of the Five Tribes as well, but didn’t think it could due to their fee title. So, to accomplish its goals, Congress formed the Dawes Commission to negotiate agreements with the tribes, who declined. Undaunted, Congress tightened the screws with several pieces of legislation between 1893 and 1906, until the tribes re-

lented. Oklahoma argued that this series of legislative measures, over a dozen or so years, resulted in erasure of the Creek Reservation—indeed all reservations—at statehood. Clearly, at least four justices heard the alarm bells sounded by Oklahoma: that affirming the Creek Reservation’s continued existence would have widespread disruptive consequences for non-Indian residents of the area, who, believing that the reservation was erased more than 100 years ago, would suddenly awaken one morning to find themselves living on an Indian reservation. Moreover, Oklahoma argued, Tulsa, a city of 500,000 people, was located there—and a city of that size cannot possibly exist on an Indian reservation. At bottom, the state asserted that following precedent and the Court’s traditional textual approach to a reservation disestablishment questions would prove to be far too disruptive in this instance. A final piece is helpful when considering the opinion ultimately rendered by the Court. When the Court granted review in McGirt in 2019, it was already struggling to answer the Creek Reservation disestablishment question. The year before, it granted review and heard argument in Sharp v. Murphy,4 which presented the same question. However, Mr. Murphy took a different path to the Supreme Court, filing federal habeas corpus claims in federal court after his state court conviction, and securing a Tenth Circuit ruling in his favor.5 Justice Gorsuch recused himself from that case, presumably due to some aspect of his previous service as a Tenth Circuit judge. After Murphy was briefed and argued, the Court ordered supplemental briefing. Then, at the end of the term, Chief Justice Roberts announced from the bench that the case would be scheduled for re-argument. Clearly, the eight-member court could not reach a majority position. But in another unusual turn, rather than hear re-argument, the Court granted McGirt, and because it came directly from the Oklahoma state court system, Justice Gorsuch was not recused. Hopefully, a nine-member court could render a decision.

The Opinion Justice Gorsuch wrote for the Court’s majority, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The opinion begins with a lengthy background on creation of the Creek Reservation and concluded that through the tribe’s treaties with the United States, “the Creek were promised … a ‘permanent home’ that would be ‘forever set apart’” and were “assured a right to self-government on lands that would lie outside both the legal jurisdiction and geographic boundaries of any State.”6 The Court then turned to the question of whether the reservation was disestablished, saying, “there is only one place to look: Acts of Congress.”7 Emphasizing both federalism and separation of powers concerns, the majority concluded that states cannot encroach on treaty promises, and that any federal nullification must come from Congress, not the courts. Moreover, Congress must “clearly express its intent to do so.”8 Contrary to Oklahoma’s argument, the Court held, Congress’s allotment policy and legislation were not, in themselves, expressions of such clear intent—neither generally nor specifically as to the Creek Reservation. Nowhere in the statutes or allotment agreements did the Court find sufficient surrender of tribal interests in the affected lands. More broadly, the Court points out that although states have argued repeatedly that allotments alone can diminish a reservation, the relevant federal statute, 18 U.S.C. § 1151, explicitly contemplates private land holdings within reservation boundaries. For this

proposition, the Court offered an interesting rationale: the United States itself issued numerous land patents for private land holdings throughout the West, “[b]ut no one thinks any of this diminished the United States’s claim to sovereignty over any land.”9 And although Congress may have contemplated allotment as a first step toward dissolution of tribal governments, it did not complete that task here. Indeed, the Creek Nation’s tribal government retained significant powers after statehood. The Court then puts a lens on the Oklahoma creation myth to demonstrate the “perils” of relying on extra textual evidence in this case: If anything, the persistent if unspoken message here seems to be that we should be taken by the “practical advantages” of ignoring the written law. How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.10 Echoing Justice Gorsuch’s concurrence in Washington State Department of Licensing v. Cougar Den,11 decided in the Court’s 2018 term, the closing section of the majority opinion states: “[M]any of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking.”12 Chief Justice Roberts wrote the principal dissent, joined by Justices Alito, Kavanaugh, and Thomas. The dissent—somewhat surprisingly due to its conservative makeup—advocated for a less textual approach that more heavily relied on a subsequent course of conduct by Oklahoma and the federal executive branch. It also was more persuaded by Oklahoma’s argument that disruptive consequences would ensue, expressing concerns about the practical implications of this decision, and worrying that it “may destabilize the governance of vast swathes of Oklahoma.”13

Consequences While the Court affirmed the continued existence of the Creek Reservation, all of the Five Tribes have similar treaty provisions. Accordingly, there is a strong likelihood that the courts will similarly conclude that the Cherokee, Choctaw, Chickasaw, and Seminole reservations continue to exist. That does not imply that chaos is just over the horizon. This decision does not mean all the Indians convicted of major crimes in eastern Oklahoma go free. For those already in prison, they have to bring post-conviction relief claims, and there are a number of other reasons why those can be denied besides the jurisdictional January/February 2021 • THE FEDERAL LAWYER • 13

question posed by McGirt. Also, some offenders may face more severe penalties in the federal system and might conclude that there is substantial risk in challenging their state court conviction rather than serving the balance of their sentence. The state, tribal, and federal governments have a shared interest in public safety. Even before McGirt, Oklahoma tribes and many local jurisdictions had entered into cross-deputization agreements, some tribal police officers were deputized as special U.S. marshals, and tribal prosecutors served as special assistant U.S. attorneys in certain cases involving Indians. While a reallocation of resources may be called for, the cooperative approach developed over the past several decades can be built upon and expanded to ensure continued public safety. Nor does McGirt change land ownership by converting private property to tribal land. As the opinion emphasizes, private land holdings are common on Indian reservations. While governmental jurisdiction over a particular parcel may shift, ownership does not. Much of the fears stoked by Oklahoma’s amici, both during and after the case, have to do with the consequences for civil regulatory authority. Montana v. United States is the “pathmarking case” setting forth the legal framework for determining whether a tribe or state has regulatory authority over a particular activity in Indian country. That test hinges primarily on the identity (member or nonmember) being regulated and where the conduct is occurring (land owned in fee by a nonmember or some form of Indian land). However, that complicated, fact-intensive test may not apply if a tribe’s treaty recognizes broader tribal authority, which some could argue may be the case for one of the eastern Oklahoma tribes. Thus, it seems likely

that the scope of tribal regulatory authority will likely be settled by the courts in the coming years. For the Creek Nation, McGirt is a profound affirmation of a homeland for which their ancestors sacrificed everything to secure. By correcting a false narrative that insisted on tribal erasure in Oklahoma, the decision was a victory for all Oklahoma tribes as well. Moreover, coming on the heels of two other treaty rights victories in the past two years,14 the opinion offered some hope for tribes across the country that a court often hostile to Indian interests in recent decades may be poised to more robustly enforce their rights. 

Endnotes 140 S. Ct. 2452 (2020). 465 U.S. 463 (1984). 3 Nebraska v. Parker, 136 S. Ct. 1072 (2016). 4 140 S. Ct. 2412 (2020). 5 Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017). 6 McGirt, 140 S. Ct. at 2462. 7 Id. 8 Id. at 2463. 9 Id. at 2464. 10 Id. at 2474. 11 139 S. Ct. 1000, 1021 (2019) (Gorsuch, J., concurring). 12 McGirt, 140 S. Ct. at 2482. 13 Id. at 2501 (Roberts, C.J., dissenting). 14 See Washington State Dep't of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019); Herrera v. Wyoming, 139 S. Ct. 1686 (2019). 1 2

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VIRTUAL

QUI TAM CONFERENCE FEBRUARY 17-19, 2021

Join the FBA’s Qui Tam Section for a three-day virtual conference from Feb. 17 to Feb. 19, 2021. Programming will start each day at 12:00pm ET, kicking off on Day One with a keynote from Sen. Chuck Grassley, an architect of the False Claims Act (FCA) in its modern form and the force behind numerous other whistleblower laws. This year’s conference will focus on the FCA in times of crisis, including changes in enforcement priorities that may follow the COVID-19 pandemic. This annual event, dubbed “the Oscars for False Claims Act nerds” by a panelist at 2020’s sold-out conference, provides timely perspectives from all sides of the FCA ecosystem: prosecutors, relator-side attorneys, defense counsel, inspectors general, federal judges, and in-house counsel. Earn CLE credit while getting insight from the nation’s top echelon of FCA practitioners—all from the comfort of your desk.

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FBA Outreach

Add a Judge and Stir: Chapters Challenged to Advance Civics Education With “Toolkit” By Cathy Barrie

Cathy Barrie is the manager of Foundation and Outreach for the FBA. She handles daily operations of the Foundation and coordinates outreach efforts for the association, including the Civics Essay Contest and national awards. She was previously managing editor of The Federal Lawyer from 1997 to 2004.

America is facing a crisis in civics education. In a letter addressed to chapter presidents and circuit vice presidents early in this fiscal year, President W. West Allen wrote about how research reports have revealed a weakness in Americans’ understanding of our governmental system. “A large majority cannot name all three branches of government, and some cannot name a single branch of government. Many do not understand basic Constitutional principles such as popular sovereignty, separation of powers, federalism, rule of law, judicial independence, or how these protect liberty. It is our job as lawyers to address this crisis. Our role as guardians and teachers of the Constitution is to act and not be acted upon.” But there is something that we can do as an organization to improve this situation. In his letter, President Allen asked every chapter to work together with a local federal court and carry out at least one civics education program for youth this year, and the Administrative Office of the U.S. Courts has created a “Civics Education Toolkit” to facilitate meeting this challenge. This Toolkit offers guidance for many well-organized programs that require minimal preparation. All programs include involvement of your local courts, offering excellent opportunities for chapter members to collaborate with the judiciary. Each program requires the participation of a judge, legal personnel, and educators as well as FBA volunteers. The goal of the Toolkit is to educate young people and bring them into contact with the legal system and judges in a positive way. The Bill of Rights Day Program is a 50-minute discussion activity based on the three-minute video “Students Sound Off on the Bill of Rights,” which is designed to coincide with Bill of Rights Day in December but can be presented at any time. Civil Discourse and Difficult Decisions is a distance-learning program of 50 to 90 minutes that involves high school or college students in realistic legal proceedings based on situations in which typically law-abiding teens can

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find themselves. Court Camps are half-day, three-day, or five-day courthouse-immersion summer camps in which participants work with judges, lawyers, and justice system professionals. Complete, program-in-a-box resources and agendas are ready for immediate use and require only a 30-minute review and a brief meeting before using them in courtrooms and in the distance-learning space—“just add a judge and stir.” Rebecca Fanning, national outreach manager for the Administrative Office of the U.S. Courts, created and tested these programs and will put your chapter in touch with local judges or civics coordinators at the court (who will then pair you with judges for the program) and facilitate introductions. Rebecca has even developed training for FBA leaders to help ensure success (dates to be announced). Chapters that participate in planning these programs can realize many benefits, including the chance to work with your court on a common goal that leads to opportunities to strengthen or create relationships with the local bench. The time to address national deficiencies in civics education is now. “This work is more important today than any generation since our nation’s founding, for we fight against civic apathy and ignorance,” President Allen wrote. “As our Constitution hangs tenuously in the balance, our choices decide our fate: whether we act or are acted upon. I ask you to be not weary in well-doing and choose to act.” 

VIRTUALl1ti

CAPITOL HILL DAY CALENDAR OF EVENTS

Plan to participate in this virtual event as FBA leaders from across the country meet with House and Senate offices to discuss important FBA legislative issues that impact the administration of justice and the federal courts. During these meetings, FBA participants will discuss issues critical to the Third Branch of government, including: adequate funding for the federal courts, filling judicial vacancies, adding new judgeships, and establishing an independent immigration court. FBA Capitol Hill Day is becoming more popular each year. Don't miss out on this opportunity to broaden the FBA's visibility and influence in Congress. Training and materials will be provided to Capitol Hill Day participants in advance of the event. Visit the www.fedbar.org for additional information.

February 25: Mal<l.ng an Impact on Capitol Hill: An Introduction to FE.A's Government Relations and Capitol Hill Day Program (noonET)

March 17: Legislative Update (on-demand viewing available)

April 14: Capitol Hill Day Preparatory Briefing (3pmET)

May 3-7: Meetings with Lawmakers and Staff

May 7: Capitol Hill Day Debrief (noonET)

Federal Bar Association

Commentary

Rethinking Reasonable: Recognizing a Prisoner’s Expectation of Privacy Under the Fourth Amendment By Bradley Taylor

All opinions expressed herein are those of the writers alone, and do not represent the official position of the Federal Bar Association, The Federal Lawyer, or any organization with which the writer is associated. Articles and letters to the editor in response are welcome.

Bradley Taylor is a civil defense attorney in Springfield, Ill., where he primarily focuses on civil rights litigation under 42 U.S.C. § 1983 and correctional healthcare claims. Prior to practicing law, he served over nine years in the U.S. Army, during which he deployed twice to Afghanistan in support of Operation Enduring Freedom. ©2020 Bradley Taylor. All rights reserved.

On Aug. 11, 2020, the Seventh Circuit joined several other circuits in recognizing that incarcerated prisoners maintain a reasonable expectation of privacy in their own bodies.1 The allegations giving rise to the decision are a stark, and graphic, indictment of the American prison system as a whole and the treatment of prisoners therein. Although unproven, the facts alleged in Henry v. Hulett forced the Seventh Circuit, sitting en banc, to confront the question of whether prisoners have any cognizable expectation of privacy under the Fourth Amendment. The court ultimately answered in the affirmative. From an ideological standpoint, this decision represents a significant triumph for advocates of personal liberties. Prisoners’ rights are not summarily extinguished upon conviction, and the privacy interest in one’s own body occupies a position of paramount importance. Acknowledging this, there are significant practical ramifications to the recognition of prisoners’ privacy interests, specifically as it concerns prison administration and security. Prisoners can and do conceal contraband on their persons; bodily searches are essential tools in identifying and removing that contraband from prison environments. As the “touchstone of the Fourth Amendment is reasonableness,” legal scholars are now left to consider: what is reasonable when maintaining security under exceptionally unreasonable circumstances?2

Shocking Allegations Precede Pivotal Decision “The degree of civilization in a society can be judged by entering its prisons.”3 On March 31, 2011, prison officials at the Lincoln Correctional Center in Illinois conducted a “mass 18 • THE FEDERAL LAWYER • January/February 2021

shakedown” of 200 female inmates. The shakedown, which began in the early morning hours, was allegedly part of a training exercise for cadets. While most inmates were still asleep, correctional officers and cadets abruptly entered two randomly selected housing units and forcefully evacuated the 200 women assigned to those units to the prison gym. The prison officials reportedly berated the inmates throughout the process, screaming obscenities, verbal abuse, and threats of administrative punishment should any inmate speak out of turn or fail to comply with alacrity.4 Once in the gym, the inmates were arranged shoulder-to-shoulder and ordered to face the wall. The women were purportedly forced to stand in place, without being allowed to sit, drink water, or use a restroom for the duration of the training exercise or until they were selected to undergo a strip search. Some allegedly remained standing for as long as five to seven hours. Once selected for a strip search, an inmate would join a group of three to nine other women and be moved to an adjacent bathroom or the prison beauty shop. Although only female cadets participated in the strip searches, both sites were visible from the gym, which allowed male correctional officers and other inmates to view the searches.5 While waiting to be searched, female cadets would order the small group of women to remove their clothing and stand in a line. The cadets would then instruct the women to “raise their breasts, lift their hair, turn around and bend over, spread their buttocks and vaginas, and cough several times” as the cadets visually inspected the inmates’ bodies. Women who were menstruating were allegedly ordered to remove feminine products and discard them either on the floor or in overflowing trash cans. This apparently forced barefoot prisoners to walk over “menstrual blood and other bodily fluids” as they were being searched. Prisoners were reportedly forced to stand nude for as long as 15 minutes at a time, while correctional officers and cadets continued to verbally demean them. The women who removed feminine products prior to the

search were not permitted replacement products and were allegedly left to bleed on themselves for several hours.6 Multiple prisoners filed claims against the prison officials for violations of their Fourth, Eighth, and Fourteenth Amendment rights. The defendants acknowledged that the plaintiffs’ factual assertions, if true, supported an Eighth Amendment claim, but moved for Summary Judgment on the Fourth Amendment claim. Prison inmates, the defendants argued, are not protected by the Fourth Amendment’s proscription against unreasonable searches. The district court agreed that the Fourth Amendment did not provide for potential relief to prisoners and dismissed the Fourth Amendment claim. After a jury found for the defendants on the Eighth Amendment claim, the plaintiffs appealed the district court’s Fourth Amendment summary judgment ruling. The plaintiffs argued that the district court erred in finding that the Fourth Amendment does not protect prisoners during visual searches. On appeal, a divided Seventh Circuit panel initially affirmed the district court’s decision. Subsequently, however, the Seventh Circuit agreed to re-hear the appeal en banc.7 The court first considered whether prison inmates “retain a Fourth Amendment right to privacy during visual inspection of their bodies.”8 In analyzing the issue, the Seventh Circuit navigated narrow and tumultuous waters. On the one side, the Supreme Court had already held “[t]he recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.”9 In fact, the Hudson Court went so far as to state that a prisoner’s right to privacy in his or her possessions was “fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.”10 On the other hand, “the Supreme Court has indicated several times that the privacy interest in one’s body is more acute than the interest in one’s property.”11 Ultimately, the court’s analysis turned on a distinction between a prisoner’s property and a prisoner’s body. While society may not recognize a prisoner’s expectation of privacy in property as reasonable, the same cannot be said of that prisoner’s expectation of privacy in his or her body. The limited right of privacy in one’s own body “is not fundamentally incompatible with imprisonment and is an expectation of privacy that society would recognize as reasonable.” In fact, the Seventh Circuit noted that “[t]he privacy interest in one’s body is clearly a heightened and fundamental one.”12 The appellate court, therefore, held that the Fourth Amendment protects a prisoner’s limited “right to bodily privacy during visual inspections, subject to reasonable intrusions that the realities of incarceration often demand.”13

Cause for Celebration or Concern? “[T]he Fourth Amendment protects people, not places.”14 Justice Stewart’s axiomatic comment on the applicability of the Fourth Amendment takes on special significance when considered in light of a prisoner’s Fourth Amendment rights. The Fourth Amendment protects people, and prisoners are, regardless of their crimes, people. Conviction is a powerful process that does not simply provide a mechanism for formal punishment—it significantly alters society’s perception of the individual and carries incredible collateral consequences.15 Although an individual’s legal status is substantially transformed through conviction, the baseline protections of the U.S. Constitution remain intact and “[p]risoners must ‘be accorded those

rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.’”16 It is easy to conceptualize the Henry decision as a manifestation of a preeminent promise of the Bill of Rights—that the will of the majority cannot work an arbitrary deprivation of basic, constitutional protections on members of less-favored groups. Prisoners, as a group, arguably represent one of America’s most vulnerable classes of citizens. It’s no secret that a disproportionate number of prisoners come from underserved, minority communities and prisoners themselves often lack the necessary resources to preserve their civil liberties.17 By recognizing the Fourth Amendment rights of prisoners, the Seventh Circuit has reinforced the unrealized ideal that the individual liberty of every American is inviolate. Although a prisoner’s Fourth Amendment right to limited privacy may not be fundamentally inconsistent with imprisonment, it still presents some very real, practical difficulties for prison administration. Prison officials are ultimately responsible for the safety of employees, visitors, and the prisoners themselves. “As a practical matter, certain rights must be restricted to make way for a myriad of institutional needs and objectives of prison facilities.”18 The presence of contraband, in the form of drugs, weapons, and other threats, potentially endangers the safety of anyone present in the facility. Correctional officers need the ability to effectively and expediently seek out and remove such contraband. Prisoners, however, may hide some items on their person, just as capably as they could hide items in their cells. For example, one inmate was found to be hiding pills in her vagina during the mass-strip search at issue in Henry.19 While the Fourth Amendment does not preclude an officer from searching a cell, it might discourage an officer from seeking out that same contraband if hidden on the prisoner’s person. This potential hurdle may inhibit safe and expedient recovery of possible threats. Preventing the recovery of contraband would ultimately work against the purpose of prison administration—the safe incapacitation of those incarcerated. The spectre of Fourth Amendment liability may work another mischief on prison officials—that of surreptitiously threatening liability under the Eighth Amendment. As it stands, the distinct mental state requirements of the Fourth and Eighth Amendments places prison officials between a proverbial Scylla and Charybdis of legal liabilities. Under the Fourth Amendment’s analysis, “a defendant’s subjective state of mind is irrelevant.”20 The Eighth Amendment, however, imposes liability for subjective awareness and conscious disregard.21 As such, a prison official who suspects a prisoner of harboring a weapon (or other dangerous item) would violate the prisoner’s Fourth Amendment rights by unreasonably searching the prisoner, irrespective of good intentions. On the other hand, if the prison official does nothing, despite his subjective awareness, and the prisoner later used the contraband to harm himself or another prisoner, the official is conceivably liable under the Eighth Amendment as he knew “of and disregard[ed] an excessive risk to inmate health or safety.”22 In a perfect world, where correctional officers only harbored subjective suspicions based on objectively reasonable criteria, these two scenarios would never come into conflict. How present reality differs from that perfect world remains to be seen, but history would suggest there is a difference, if not a substantial one. Besides, the mere threat of Fourth Amendment liability may be enough to discourage a well-meaning correctional officer from searching a prisoner, even January/February 2021 • THE FEDERAL LAWYER • 19

if later analysis would have proven the search to be reasonable. As it stands, some prison officials may be forced to perform on-thefly legal calculus—“What’s worse, a potential Fourth Amendment claim if I search the prisoner and find nothing, or a potential Eighth Amendment claim if he had something and I did nothing?” It’s not an enviable position. Of course, time itself remains the ultimate authority on the question of wisdom. Fourth Amendment rights are sacrosanct in American society and serve as a bulwark protecting individual liberties from overzealous and unscrupulous government intrusions. Prisoners retain the individual liberties that are not fundamentally incompatible with incarceration, and every circuit to address the issue has found this to include a limited right to privacy of the body under the Fourth Amendment. On the other hand, the practical reality of prison administration calls for substantial concessions of individual liberties in the name of security. It is never easy to weigh valid, ideological goals against safety considerations, but that tension is acutely present and must be reconciled in prisoner Fourth Amendment privacy claims.

A Singular Setting Calls for Unique Considerations “The touchstone of the Fourth Amendment is reasonableness.”23 In holding that the Fourth Amendment protects prisoners’ privacy interests, the Seventh Circuit also explicitly noted that prisoners’ Fourth Amendment rights were severely limited by countervailing penological interests.24 As such, prisoners cannot expect to be extended the same level of constitutional protection as is extended to those not incarcerated. Fourth Amendment analysis has always been guided by objective reasonableness, under a totality of circumstances at the time of the alleged violation. Therefore, “[t]he Fourth Amendment can, and must, account for institutional concerns.”25 Specifically, the unique circumstances of the prison setting must be expressly considered under the totality of circumstance analysis in any prisoner Fourth Amendment claim. Fourth Amendment jurisprudence is well-developed in other contexts, but those other contexts are not directly analogous to prisoners’ Fourth Amendment claims. Although the analytic framework may be similar, case law supporting whether a particular search was reasonable or unreasonable will not be helpful, as it almost certainly occurred under remarkably different circumstances. Prison conditions create a unique confluence of strain, threat, and potential for tragic results, which must be given special consideration. The most obvious example of inapposite Fourth Amendment case law is probably Fourth Amendment claims stemming from police searches. Police encounters and encounters between correctional officers and prisoners are not interchangeable because the circumstances under which the divergent encounters occur are entirely distinct. “Violence inside a prison can take place anywhere. It can happen inside the housing units, the recreation yard, work areas, the infirmary or … the classrooms. … Critical incidents can turn into lethal situations in seconds and security is necessary to deter such ideas or occurrences daily.” Even under the best of circumstances, the potential for violence in a prison is always elevated compared to other environments. Prison officials are required to recognize this reality, not just so that they may be prepared to protect themselves, but so that they may proactively prevent violence and mitigate its effects when it cannot be prevented.26 Moreover, prison officials are not only responsible for protecting themselves from potential harm; they 20 • THE FEDERAL LAWYER • January/February 2021

are obligated to take reasonable measures to prevent prisoners from harming themselves and other prisoners. As such, they must actively seek out dangerous items, even when a correctional officer may not be able to justify individualized suspicion of a single inmate. The appropriate test to determine whether a prisoner’s Fourth Amendment right to bodily privacy was violated “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” More specifically, prisoners “must provide sufficient evidence that the searches were unreasonable, considering ‘the scope of the particular intrusion[s], the manner in which [they were] conducted, the justification for initiating [them], and the place in which [they were] conducted.’”27 Because the balancing test turns only on objective criteria, subjective intent of the prison official is irrelevant.28 That’s true even if the prison search was conducted for retaliatory purposes. Further, no search is per se unreasonable, no matter how intrusive, as the most intrusive searches feasible (body cavity searches) have already been found to be reasonable and, therefore, constitutional in the prison context.29 From the outset, given the setting, most factors under this balancing test will favor defendants. “Controlling contraband within a prison is a legitimate penological interest,” and any search is arguably “reasonably related to [that] interest.”30 The facts in Henry, however, suggest that significantly intrusive, egregiously conducted searches might be unreasonable if conducted in the absence of immediate security concerns. Plaintiffs in that case alleged that the “mass shakedown” was conducted as a training exercise for the cadets—not based on an elevated suspicion that prisoners were hiding contraband on their persons.31 The court did not state that a training exercise was not a legitimate penological purpose but did note “a court need not give as much deference to a prison administrator’s assessment of the necessity of a training exercise as it does to measures taken in response to the actual presence of weapons, contraband, or other immediate security concerns.”32 This consideration, in combination with the shocking manner in which the searches were allegedly conducted, called the overall reasonableness, and therefore constitutionality, of the search into question. So, how do uniquely penological circumstances impact the Fourth Amendment balancing test? The scale is tipped in favor of defendants due to the special deference owed to prison administrators. “When evaluating reasonableness, in the context of strip searches of prisoners as in others, courts must afford prison administrators ‘wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’”33 Prison officials, when answering an allegation of a Fourth Amendment violation, will argue that a search was justified in order to achieve an institutional goal—usually security. As maintaining security is an omnipresent and valid penological purpose for a search, defendants will almost certainly always be able to argue the search was conducted with reasonable justification. Even if the search was fruitless, a court should defer to the officials’ expertise in prison administration. In a practical sense, this means that plaintiffs can only overcome the deferential presumption of reasonable justification by producing substantial evidence that prison officials unreasonably responded to the search’s purported necessity.34 Alternatively, given the nature of the Fourth Amendment balancing test, this leaves plaintiffs to argue that the manner, location, or scope of the search was so unreasonable as to outweigh any reasonable justification for that search. In either

case, prisoners seeking to vindicate their Fourth Amendment rights following a search face a daunting evidentiary burden.

Conclusion Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.35 It is important to acknowledge the significance of the Henry decision. The Seventh Circuit’s recognition of prisoners’ limited privacy protections under the Fourth Amendment is arguably past due. On the other hand, from a practical perspective, this decision may have substantial negative consequences for those tasked with maintaining safety and security within prisons. Academically, with the benefit of hindsight, it may be relatively simple to identify unreasonable aspects or conduct relating to a prison search. From the perspective of a correctional officer, however, what is objectively reasonable may not always be so apparent—especially when faced with potentially deadly consequences of error. Fourth Amendment analysis has always turned on reasonableness, but “reasonable” takes on a whole new meaning when considered in the context of a prison search. Litigants must consider the unique circumstances of the prison setting when advocating for their clients, regardless of their respective positions. Courts, too, must account for security concerns, penological interests, and deference to prison administrators when passing judgment in prisoners’ Fourth Amendment claims. Ultimately, although advocates of individual liberties are right to celebrate the Henry decision, potential claimants still have an uphill battle to prove their Fourth Amendment claims. 

U.S., Wash. Post (Feb. 10, 2019), https://www.washingtonpost. com/outlook/2019/02/10/prisoners-are-among-most-vulnerablepeople-us/. 18 Henry, 969 F.3d at 778 (quoting Hudson, 468 U.S. at 524 (internal quotation marks removed)). 19 Id. at 775. 20 Id. at 781. 21 Farmer v. Brennan, 511 U.S. 825, 839-40 (1994). 22 Id. at 837. 23 Florida v. Jimeno, 500 U.S. 248, 250 (1991). 24 Henry, 969 F.3d at 779. 25 Id. at 784. 26 Carl ToersBijns, Personal Safety Inside Prison, Corrections.com (Feb. 9, 2015), http://www.corrections.com/news/article/38818personal-safety-inside-prison. 27 Henry, 969 F.3d at 777, 784 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). 28 Nunez v. Duncan, 591 F.3d 1217, 1228 (9th Cir. 2010). 29 Henry, 969 F.3d at 783-84. 30 Nunez, 591 F.3d at 1228. 31 Henry, 969 F.3d at 774-75. 32 Id. at 781. 33 Id. at 783 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). 34 Id. 35 Davis v. Ayala, 576 U.S. 257, 288-89 (2015).

Endnotes Henry v. Hulett, 969 F.3d 769, 779-80 (7th Cir. 2020) (en banc). Ohio v. Robinette, 519 U.S. 33, 39 (1996). 3 Davis v. Ayala, 576 U.S. 257, 290 (2015) (quoting Fyodor Dostoyevsky). It should be noted that the quote, while often attributed to Dostoyevsky, has never been verified. 4 Henry, 969 F.3d at 773-75. 5 Id. at 774-75. 6 Id. at 775. 7 Id. at 775-76. 8 Id. at 776. 9 Hudson v. Palmer, 468 U.S. 517, 526 (1984). 10 Henry, 969 F.3d at 778 (quoting Hudson, 468 U.S. at 527-28). 11 Id. at 777-78. 12 Id. at 778. 13 Id. at 779. 14 Katz v. United States, 389 U.S. 347, 353 (1967). 15 For an excellent historical analysis of collateral consequences, especially as it has impacted modern African-American communities, see Artika Tyner & Darlene Fry, Iron Shackles to Invisible Chains: Breaking the Binds of Collateral Consequences, 49 U. Balt. L. Rev. 357 (2020). 16 Henry, 969 F.3d at 778 (quoting Hudson 468 U.S. at 523). 17 Kim Kelly, Prisoners are Among the Most Vulnerable People in the 1 2

January/February 2021 • THE FEDERAL LAWYER • 21

Tribute to RBG

Heroes Never Die: How RBG Can Live On By Rupa G. Singh

Ideals are like the stars: we never reach them, but, like the mariners of the sea, we chart our course by them. ~Carl Schurz1

Rupa G. Singh is a certified appellate specialist who handles complex civil appeals and critical motions in state and federal courts at Niddrie Addams Fuller Singh LLP, San Diego’s only appellate boutique. She is a past president of FBA–San Diego, a former Ninth Circuit staff attorney, and a self-proclaimed RBG groupie. She is married to a telecommunications engineer and is the proud mother of three would-be “notorious” activists. ©2020 Rupa G. Singh. All rights reserved.

As an appellate lawyer and a woman standing on the shoulders of countless pioneers who paved my way, I greatly admire Justice Ruth Bader Ginsburg, or RBG, as she was dubbed.2 But I had not studied her writings beyond scholarly summaries in seminars or journals. The two times I heard her speak live were from afar, allowing for no interaction. I also had little occasion to apply the equal rights jurisprudence for which she was best known in my business-focused appellate practice. So, while aware of her groundbreaking work and well-deserved celebrity, I found my daily life unaffected in any palpable way by RBG. Or so I thought. Her passing affected me so immensely, shaking me to the core, that I felt as if a protective, guiding hand had been lifted from not only my head, but from our country’s back, leaving us both adrift. Then I heard Dean Erwin Chemerinsky say during a seminar about the Supreme Court’s October 2020 term that we are grieving that much more for RBG because she was a hero at a time when our profession doesn’t have that many heroes. It shouldn’t have taken another’s words to make me realize it, but RBG was a true real-life hero, one so relatable that she represented our aspirations to be heroes ourselves. Her superpower was her brain, reflected in her pen. In eighth grade, she wrote an editorial for her school newspaper about the five greatest documents the world had known to date. With clear-eyed brevity, she made the case for why the U.N. Charter should join the Ten Commandments, the Magna Carta, the British Bill of Rights, and the U.S. Declaration of Independence as documents that benefitted humanity “as a result of their fine ideals and principles.”3 Her ability to write and speak persuasively continued to be on full display in her teachings, speeches, and writings as a law professor at Rutgers University and Columbia Law School; a winning appellate advocate at the ACLU; a judge on the D.C. Circuit Court of Appeals; an associate justice on the U.S. Supreme

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Court; and a sought-after public speaker and officiant throughout her career. Surprising for someone whose words and work proved so revolutionary, she strategically advocated incremental change, inviting everyone along instead of dragging them to a desired conclusion about equality under the law in various respects—parental estate administration, dependent benefits for military spouses, social security and tax deductions, access to public education, pay discrimination, voting rights, and reproductive justice, among others.4 Even in her powerful dissents, she tried persuading instead of berating the majority, using accessible, everyday English to discuss why the other justices’ interpretation of complex legislation or jurisprudence was mistaken. In her influential dissent in Ledbetter v. Goodyear Tire & Rubber Company, she candidly noted that her male colleagues did “not comprehend or [were] indifferent to the insidious way in which women can be victims of pay discrimination” and put the “ball” in Congress’s court “to correct this Court’s parsimonious reading of Title VII”5—successfully so, with Congress’s enactment in 2009 of the Lilly Ledbetter Fair Pay Act. Six years later, in Shelby County v. Holder, she explained that invalidating an anti-discrimination mechanism in the Voting Rights Act of 1965 that applied to historically segregated southern states when “it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”6 How RBG’s dissenting words will inspire legislators and advocates to reinstate or strengthen voter protection provisions remains to be seen. Though she refused to use the traditional phrase, “I respectfully dissent,” it was not meant disrespectfully. Rather, because RBG genuinely respected the colleagues with whom she disagreed, she seemed to find it hypocritical to pretend that she respected the majority’s reasoning while systematically explaining why it was fundamentally mistaken or incorrect. Based on unspoken mutual respect, she bravely and candidly disagreed with her colleagues’ analysis while trying not to criticize their motives or intelligence. In an era of growing incivility in political, legal, and civic

discourse, RBG modeled how to consistently take the moral high ground without being disingenuous or artificial. Equally heroic was that combination of humility, feminine sensibility, and enduring grace that made her accomplishments seem effortless, and possible to be emulated. Perhaps knowing that her brilliance could be intimidating—she once learned to speak Swedish before starting a two-year research project there—RBG disarmingly acknowledged her limitations, whether in the kitchen or on the cello. Cultured and refined, with a love of opera and theater, RBG carried none of the elitism sometimes associated with patronage of the arts. Art, she said, simply made life beautiful. On many occasions, RBG switched the spotlight from herself to instead praise and thank her personal heroes, including her mother, her parents-in-law, and her husband, as well as her professional role models, including Professor Vladimir Nabokov at Cornell and ACLU advocates Pauli Murray and Dorothy Kenyon. When she was nominated to the D.C. Circuit by President Carter, she devoted her remarks to praising the trailblazing women also nominated to the federal bench alongside her. She exemplified quiet feminism even in her devotion to her husband, advocating for a marriage built on intellectual respect and romantic love, believing that the two were inseparable. During interviews, she sometimes shared with shy candor that she sought advice from her mother-in-law on making her marriage a success and her father-in-law on balancing marriage, motherhood, and career. Instead of taking offense that women’s wardrobe choices garner public attention in a way that men’s don’t, RBG also incorporated her iconic fashion sense and “dissent” collars to amplify her feminist message. She assumed the mantle of her unsolicited celebrity graciously, helping more than one generation reimagine a life in the law as fulfilling and cool all at once. How can RBG not live on if we, and hopefully future generations, continue to chart our course by her example? Happily for most of us, that need not mean enduring every personal tragedy with dignified strength, such as the death of a sister and mother in early life; overcoming overt employment discrimination despite being the law school valedictorian; writing the definitive textbook on sex discrimination; co-founding a path-breaking ACLU project; marrying your staunchest admirer for all the right reasons; surviving and nursing others through multiple bouts of cancer; ascending to the male-dominated D.C. Circuit Court of Appeals and the U.S. Supreme Court; and making it hip to be a petite, bespectacled legal nerd. Rather, honoring RBG’s legacy could just mean pretending to be slightly deaf to unkind words or criticism, as her mother-in-law advised and as RBG confessed to doing personally and professionally; choosing persuasion over accusation in our speech and writing, as RBG did skillfully from at least the eighth grade; striving for moderation, even in our impassioned efforts to create lasting change in our chosen sphere, as RBG modeled in her thoughtful appellate advocacy and careful judicial dissents; or putting such conviction in all aspects of our work that success seems preordained to cross-generational skeptics, as RBG ensured from her first tax case as an advocate to one of her last votes during the October 2019 term—to strike down a Louisiana law restricting abortion access. For me, how I should try to carry on RBG’s legacy was brought home yet again by someone else’s words—this time, those of my nine-year old daughter. More concerned with perfecting her gymnastics front flips and pulling off a soccer hat trick than reflecting

on equality under the law, the youngest member of our family was nevertheless visibly moved by a KPBS film tribute to RBG that our family recently watched. After being quiet through dinner that night, she said decisively, “I wish we could dissent from someone’s death. If so, I dissent from RBG’s death.” It made me smile, cry, and marvel at her elegant ability to simplify how I could transform into meaningful action my unavailing grief for someone I mistakenly thought never touched my life tangibly. Because I now aspire to persuade, oppose, and make tactical decisions as an advocate by asking what my hero, RBG, would do in that situation, I proudly join in my daughter’s dissent. 

Endnotes Top 13 quotes of Carl Schurz, Inspiringquotes.us, https://www. inspiringquotes.us/author/6443-carl-schurz (last visited July 3, 2020). Schurz was a German-American political leader, journalist, orator, and U.S. Senator at the turn of the last century. The Editors of Encyclopedia Britannica, Encyclopedia Britannica https://www.britannica.com/biography/Carl-Schurz (last visited July 3, 2020). 2 The name came from an NYU law student’s blog titled the Notorious RBG, likening Justice Ginsburg to the rapper Notorious BIG after her powerful dissent in a seminal voting rights case, Shelby Cty. v. Holder, 570 U.S. 529 (2013). NBC News, Interview with Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States (Feb, 23, 2017) https://www.nbcnews.com/video/ruth-bader-ginsburg-explainsorigins-of-the-notorious-rbg-883729987755. 3 Ruth Bader Ginsburg, Mary Harnett, & Wendy Williams, In My Own Words 10 (2018). 4 See Reed v. Reed, 404 U.S. 71 (1971) (no automatic preference for males as estate administrators); Frontiero v. Richardson, 411 U.S. 677 (1973) (female officer’s spouse entitled to same medical benefits as male officer’s); Moritz v. Comm’r of Internal Rev., 469 F.2d 466 (1972) (caregiver deduction available to unmarried men, not just women or widowers), review den., 93 S. Ct. 2291 (1973); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (provision giving widows but not widowers social security benefits while caring for minor children unlawful); Craig v. Boren, 429 U.S. 190 (1976) (statute allowing women to buy beer at 18 and men at 21 discriminates on the basis of sex); and U.S. v. Virginia, 518 U.S. 515 (1996) (exclusively male public military school violates equal protection). 5 550 U.S. 618, 661 (2007) (Ginsburg, J., dissenting), overruled by Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. (2009). 6 570 U.S. 529, 590 (2013) (Ginsburg, J., dissenting). 1

January/February 2021 • THE FEDERAL LAWYER • 23

Judicial Profile

Hon. Joan N. Ericksen

Senior U.S. District Judge, District of Minnesota by Jeya Paul

Jeya Paul is Of Counsel at the litigation boutique of Greene Espel PLLP in Minneapolis. She met Judge Ericksen when the judge presided over the naturalization ceremony at which Paul became a U.S. citizen. Paul later clerked for Judge Ericksen.

on. Joan N. Ericksen is the first person to have been appointed to the judiciary at each level of the Minnesota state court system (district court, court of appeals, and supreme court) as well as to the federal bench. As a federal district court judge, she has presided over 6,000 cases, issued over 20,000 orders, and sentenced more than 800 criminal defendants. When asked for a single word that describes Judge Ericksen, her former law clerks offered adjectives like “astute,” “brilliant,” “conscientious,” “compassionate,” “fair,” “exceptional,” “sharp,” and “unparalleled.” They and others who have had the good fortune to work with her in chambers observe the diligence, intelligence, and expertise with which she carries out her judicial duties. But Judge Ericksen did not start out intending to become a judge, or even a lawyer. Her trajectory is a prime example of the way in which natural talent, external circumstances, and innate interests sometimes come together fortuitously to ensure that the right person lands in the right job.

A Childhood Steeped in Academia Judge Ericksen was born in 1954 in Minnesota’s capital city, St. Paul. But she spent much of her childhood in the small college town of Northfield, Minn. Her mother, Claire, founded and ran the Northfield Day Care Center. Her father taught math and coached golf at St. Olaf College. Judge Ericksen recalls her early years fondly. Her parents taught her to appreciate good literature. From them, and those in their circles, she also learned “the value of having a social conscience, a meaningful vocation, and a sense of humor.” As a teenager, Judge Ericksen accumulated an eclectic set of work experiences. Her first job was processing film slides at a 3M Dynacolor plant. In that role, she got her first exposure to federal law, as she enforced the rule barring explicit pictures from being sent in the mail. One summer, she painted building exteriors as the first female hired by a national house-painting company. She later had a stint working in a corn-packing factory. During those years, she also waitressed at several different establishments. Given the discount for professors’ children, it was 24 • THE FEDERAL LAWYER • January/February 2021

practically a foregone conclusion that Judge Ericksen would attend St. Olaf College herself. She studied psychology and political science. In her final year, she participated in a study-abroad in England. She found the experience so exhilarating that she wanted to stay another year. She succeeded in enrolling in a program at Oxford University. Her descriptions of the time sound idyllic: “walking the halls that great thinkers had frequented … studying John Stuart Mill in cavernous stone-walled libraries … playing percussion in a pit band for local theatrical productions …” On returning to Northfield, she deliberated next steps. Until that point, academia had been her world and teachers her main role models. She envisioned becoming a professor herself and started applying to Ph.D. programs. On the chance suggestion of an acquaintance, she applied to law schools as well. After whittling down her choices, she debated between a Ph.D. program in literature at Stanford University and law school at the University of Minnesota. She chose the latter. She reasoned that she could always teach with a law degree if she did not want to practice but would have fewer options if she got the doctorate and then did not want to teach. It turned out to be the right decision. She found law school enthralling.

An Unanticipated Start as a Trial Lawyer As someone who describes herself as “shy” as a child, becoming a trial lawyer did not immediately stand out to Judge Ericksen as a path to pursue. During law school, she had developed an interest in labor law. As graduation approached, she applied to local firms with relevant practices. At the time, in 1981, women still made up a relatively small proportion of practicing lawyers. One firm that represented labor unions interviewed her but then openly said that they could not make an offer because the men on the line would never accept a woman lawyer. Another firm made her an offer, only to rescind it soon after. Her contact sheepishly explained that, when notified, the firm’s board voted to formally bar hiring women lawyers. She broadened her search and found employment with the LeFevere, Lefler firm in downtown Minneapolis. The firm’s clients included multiple municipalities, and the firm’s lawyers would often act as city attorneys for cities too small to employ their own. So, straight out of law school, Judge Ericksen found herself attending city council meetings as a city’s legal counsel. She also routinely acted as prosecutor for minor criminal offenses, including speeding, DWIs, and assault. Those cases often went to trial, such that in two years she had tried 12 cases to a jury and 40 to a judge. And Judge Ericksen made an unexpected discovery: she enjoyed being in a courtroom and trying cases as the government’s lawyer. So much so that when the U.S. Attorney’s Office advertised an open position, she enthusiastically applied.

Mastering Trial and Federal Practice at the U.S. Attorney’s Office Judge Ericksen spent her most formative practice years as an assistant U.S. attorney for the District of Minnesota. Starting out in 1983 in the office’s civil division, she often litigated cases on behalf of the U.S. Postal Service or Department of Veterans Affairs. But in the case that stands out most to her from that period, A.W.G. Farms, Inc. v. Federal Crop Insurance Corp., she represented the Federal Crop Insurance Corporation in a suit by 350 sugar beet farmers from the Red River Valley of Minnesota and North Dakota.1 Incidentally, her parents came from the Valley—her mom from Grand Forks, N.D., and her dad from East Grand Forks, Minn. She had relatives in the sugar beet industry. The lengthy litigation—over insurance payment for the loss of the 1981 sugar beet crop to frost—ultimately settled. Nonetheless, it had a personal impact on Judge Ericksen, as some family members never quite forgave her for representing the government against their interests. After a few years in the civil division, Judge Ericksen moved to the criminal division. She prosecuted a range of crimes, from drug trafficking to first-degree murder. Notably, she prosecuted the first RICO (Racketeer Influenced and Corrupt Organizations Act) case in Minnesota—United States v. Kragness. In obtaining a verdict against five defendants involved in a narcotics operation

touching multiple states and Mexico, the government put up 30 witnesses at trial.2 That trial was one of about 25 jury trials that Judge Ericksen handled as an assistant U.S. attorney. As a prosecutor, she also developed a specialty in fraud cases of various types, including matters involving fraudulent marketing of commemorative medallions to vets (United States v. Cheatham); a scheme to defraud individuals investing in rare coins (United States v. Blodgett); and insider trading (United States v. Poindexter).3 She notes the unique challenge of fraud cases as “often they involve an element of truth that complicates parsing the unlawful conduct.”

Becoming a State Court Judge After a Return to Private Practice After 10 years as an assistant U.S. attorney, Judge Ericksen decided to return to private practice. In 1993, she joined a firm, at the time called Leonard, Street, and Deinard, as a partner. Having to again deal with “billable hours” and “business development” after 10 years in the government required some adjustment. But after litigating a case in Wisconsin, which kept her away from home for weeks at a stretch, the most poignant challenge turned out to be work-life balance. In that case, she represented an architectural firm against claims of liability relating to a cold-storage warehouse it had designed.4 A massive fire had led to extensive damage, including the loss of millions of pounds of stockpiled butter that flowed into the streets of Madison. During the lengthy trial, Judge Ericksen’s three-year old son, John, would sometimes accompany her on the team’s chartered plane so that she could spend time with him. The trial ended in a win for her client, with no liability on the $50-million claim against it. But when Judge Ericksen’s second child, Claire, was born soon after, she decided she did not want to be on the road like that again. So, Judge Ericksen applied for a job that she knew would require minimal, if any, travel—that of a state court judge. Judge Ericksen had previously litigated a case against the then-chair of Minnesota’s judicial selection committee, a group of lawyers and community representatives that evaluates judicial candidates for positions that open between elections. On the committee’s recommendation, in 1995, Governor Arnie Carlson appointed Judge Ericksen to the district court bench in Hennepin County, Minn., the main judicial district for the city of Minneapolis. The position required rotation through different court divisions. She spent a year in criminal court. She then moved to juvenile court, which is the division that handles adoptions, delinquency, and protection matters involving children. In juvenile court, Judge Ericksen began noticing a recurring theme in many of the cases that came before her. Time and again, she observed the devasting effects of alcohol abuse, often by pregnant mothers, on children. Deeply troubled by the problem, she joined forces with then Minnesota First Lady Susan Carlson, who also served as a judicial officer in juvenile court. Together, January/February 2021 • THE FEDERAL LAWYER • 25

compel a blood test needed to initiate a paternity action (Witso v. Overby).6 While on the Minnesota Supreme Court, Judge Ericksen continued to devote time and energy to working on children’s issues. She chaired the court’s Child Protection Rules Committee and became its liaison to the Juvenile Rules Committee. She also undertook a special project to examine the way Minnesota courts handle juvenile delinquency matters, chairing the Minnesota Supreme Court Task Force on Juvenile Justices Services. In addition, she served on the board of a Minnesota nonprofit, Friends of the Children Foundation, that focused on children in foster care.

Returning to Federal Court as a District Court Judge

Judge Ericksen with her dog, Lily.

they organized and co-chaired a statewide task force on fetal alcohol syndrome. The task force issued a report with recommendations for the state. The task force’s work influenced the subsequent creation of the Minnesota Organization on Fetal Alcohol Syndrome, which continues today as the Proof Alliance.

Shaping Minnesota Law at the Appellate Level After three years in district court, Governor Carlson appointed Judge Ericksen to the Minnesota Court of Appeals. But before she could start in that position, a vacancy came up on the Minnesota Supreme Court. The governor invited her to serve in that role instead. She accepted. Judge Ericksen became a Minnesota Supreme Court justice in 1998. Although she still wore the same robe, her day-to-day work changed significantly. At the trial court, she had a narrower focus on individual cases and bore the weight of decisions alone. She now needed to adopt a bigger-picture perspective. She also appreciated having colleagues with whom to deliberate policy questions and jointly decide matters. The majority opinions that she authored as a state justice covered a broad range of significant issues of Minnesota law. Those opinions include the court’s finding in Gilbertson v. Leininger that a social host did not have a legal duty to protect an intoxicated dinner guest from harm; the court’s determination in Peterson v. O.R. Anderberg Construction that Minnesota’s workers’ compensation liability law allowed equitable allocation of liability among sequential employers; and the court’s clarification in Jostens, Inc. v. Federated Mutual Insurance Company of the standard governing when a party may pursue an interlocutory appeal in Minnesota state court.5 Judge Ericksen also dissented in cases dealing with weighty subjects, including the constitutionality of a provision of Minnesota’s civil commitment statute (In re Dennis Darol Linehan) and the interpretation of statutory provisions specifying when an alleged father could 26 • THE FEDERAL LAWYER • January/February 2021

In 2002, with a Republican in the White House and two Democrats in the Senate seats for Minnesota, a vacancy arose on the federal district court bench in Minnesota. A bitter partisan fight in 2001 over the nomination of Charles Pickering to the Fifth Circuit Court of Appeals had generated interest in identifying judicial candidates unlikely to be controversial. In that context, Senators Paul Wellstone and Mark Dayton recommended Judge Ericksen to President George W. Bush for the district court position. After the president’s nomination, the Senate confirmed her, with a 99-0 vote, on April 25, 2002. As a federal judge, Judge Ericksen has had a wide variety of litigation come before her. Of the more than 6,000 cases assigned to her by the time she took senior status in the fall of 2019, more than 75 percent have been civil lawsuits. Some have garnered media attention, especially those implicating civil rights issues. For example, in Straights and Gays for Equality (SAGE) v. Osseo Area Schools-District No. 279, Judge Ericksen issued an injunction against a local school district and related parties ordering that the SAGE student group receive the “same access for meetings, avenues of communication, and other miscellaneous rights” as those afforded to other student groups.7 In Garcia v. Metro Gang Strike Force, she oversaw the settlement of a civil class action by individuals subjected to egregious actions by a disbanded police task force.8 And in Cooper v. Abdul-Aziz, she granted damages to three women for their dismissal from chauffeur jobs when a Saudi prince visiting the Mayo Clinic demanded only male drivers.9 That decision received coverage as far away as India and Taiwan. But thousands of civil cases that have not been spotlighted by the press have nonetheless been important to the parties involved. These have included product liability suits, business contract disputes, tax cases, intellectual property matters, and more. For example, in a trademark infringement action, Roederer v. J. Garcia Carrion, S.A., Judge Ericksen issued an injunction requiring all bottles of the Spanish “Cristalino” sparkling wine sold in the United States to include a note disavowing any affiliation with the more expensive French “Cristal” champagne.10 And in Carlson, Inc. v. IBM Corp. she decided a dispute over a $646 million outsourcing contract for various business

technology systems that had been terminated early.11 Although her criminal cases have made up a smaller percentage of her case total, they have made for more than half of the trials in Judge Ericksen’s courtroom. They have also been more likely to involve emotionally challenging facts, whether relating to a crime or a defendant’s background. As just one example, in United States v. Lindsey, Judge Ericksen had the sensitive task of managing a jury trial of defendants on charges relating to a home invasion and robbery in which two adults and a child were killed in the presence of younger children.12 In addition, with each of the more than 800 sentencings that she has done, she has had to weigh any mitigating and aggravating circumstances. Given the breadth of law and complexity of factual issues that a federal judge needs to tackle, Judge Ericksen notes that “the ability of a judge to make sense of a situation is often highly dependent on work done by the lawyers.” To constantly remind herself of the important role played by lawyers, she has a sticky note at her bench that reads “Law is not shaped by judge alone, but by judge and company.”

An Impact Beyond the Courtroom During her time on the federal bench, Judge Ericksen’s impact has extended far beyond the parties in her courtroom. One subject to which she has devoted considerable time and energy is the development of rules and procedures at the national and local levels. In 2005, the chief justice of the U.S. Supreme Court appointed her to the national Advisory Committee for the Rules of Evidence. During her tenure on the committee, it undertook a major restyling effort. Although rare to be appointed to two advisory committees, in 2011, she joined the Advisory Committee for Civil Rules. She served as the chair of a subcommittee looking at potential changes to Rule 30(b)(6). As an experienced trial lawyer, in committee deliberations she could address in a nuanced way which aspects of which rules impacted the litigation process. She has also taken on various roles relating to rules and related matters locally. For example, she served as the judicial liaison to the Federal Practice Committee, which is responsible for the local rules in the District of Minnesota. She also chairs the Eighth Circuit Jury Instructions Committee. In addition to her work on children’s issues in Minnesota, Judge Ericksen has continued to pursue her early interest in education. As an adjunct professor or guest lecturer at each of the local law schools, she has taught trial skills, evidence, and criminal law. An interesting outgrowth from her work on the Rules of Evidence Committee was her joining the National Conference of Bar Examiners. Starting in 2008, she served on a team of law professors and one other judge to draft questions for the multistate bar exam. She recently joined the Board of Regents for St. Olaf College. Judge Ericksen has also had a role in encouraging the local patent-law practice. She co-founded The Honorable Jimmie V. Reyna Intellectual Property American Inn of Court. She also speaks regularly at patent law

CLE seminars. She has described enjoying the chance afforded by patent cases to learn about a given technology. In her office, one can find models from a few of her approximately 300 patent and other intellectual property cases—ranging from a plastic replica of the human heart to military earplugs. If she weren’t a judge, Judge Ericksen now thinks she might have liked being an engineer.

Judge Ericksen hiking near Cusco, Peru.

The Multiplier Effect Beyond her impact on the law and the various endeavors to which she has contributed, no account of Judge Ericksen’s career would be complete without a mention of the effect she has had on her law clerks. In her time on the federal bench, over 30 law clerks have spent one or more years in her chambers. They have gone on to become various types of law practitioners. In recollections assembled for Judge Ericksen’s senior-status commemorations, many of those clerks recounted the meaningful and lasting effects of their time with Judge Ericksen. For example, Sarah Lorr, now on the Brooklyn Law School faculty, noted that her clerkship provided “[t]he opportunity to be in close proximity to a brilliant, sharp legal mind” and “almost 10 years into my career, I continue to model myself on Judge Ericksen.” Several transplants to Minnesota expressed gratitude for, in the words of Holley Horrell, a litigator in private practice, “how this clerkship helped me make this community my home.” A federal magistrate judge, January/February 2021 • THE FEDERAL LAWYER • 27

Elizabeth Cowan Wright, listed lessons she learned from her clerkship with Judge Ericksen, including to “[u]se judicial power carefully.” Luke Garrett, who worked as a public defender for several years after his clerkship, recalled a specific decision Judge Ericksen made at a plea hearing for a criminal defendant that “made an impression on me at the time, and my respect for the decision only grew during my years in public defense.” Another anecdote, one from private practitioner Bob Koneck, poignantly captures Judge Ericksen’s courtroom presence, along with her impact on her law clerks: The Judge was about to sentence a man who had committed a heinous crime. He talked through tears about how he had failed those he loved and how much he regretted the pain he caused his victims. His remorse seemed real, but his crimes were horrible. Most people, including myself, would have responded to him with contempt. The Judge didn’t. She told him that his worst actions did not define him. She reminded him that he had not failed entirely as a person. She treated him with dignity when it was hard to do so. Few people would have done that. I’ll always remember the power of this act of decency. The list of memorable moments, important lessons, and reasons for gratefulness goes on. Collectively, they show how Judge Ericksen’s influence has had and will continue to have ripple effects beyond the decisions she made in any given case. In an interview several years after she became a federal judge, Judge Ericksen was asked about the legacy she envisioned for herself. She mentioned aspiring to replicate certain attributes of the judges who had previously held her seat on the Minnesota District Court bench and hoped for herself “overall to have done nothing to harm the reputation of the District as a place that people can come and have disputes resolved in a fair way.” She has most certainly done that—with brilliance and heart, she has carried out the judicial task of, as she describes it, “working towards justice, one human circumstance at a time.” But, as the foregoing account reflects, her legacy is so much more. Not only is she an admirable jurist, she has also made contributions to the legal and broader community that have touched the lives of many. 

Endnotes For a description of the dispute, see A.W.G. Farms, Inc. v. Fed. Crop Ins. Corp., 586 F. Supp. 690 (D. Minn. 1984). 2 See United States v. Kragness, 830 F.2d 842, 847-48 (8th Cir. 1987). 3 See United States v. Cheatham, 899 F.2d 747, 748-50 (8th Cir. 1990); United States v. Blodgett, 32 F.3d 571 (8th Cir. 1994); United States v. Poindexter, No. 3-92-CR-66 (D. Minn. 1993). 4 That case proceeded to trial in Wisconsin state court. See In re: May 3, 1991, fire at 4309 Cottage Grove Road, 1

28 • THE FEDERAL LAWYER • January/February 2021

No. 91-CCV-4187 (Dane County, Wis. 1991). For some general facts about the fire, see United States v. Crown Equip. Corp., 86 F.3d 700 (7th Cir. 1996). 5 Gilbertson v. Leininger, 599 N.W.2d 127 (Minn. 1999); Peterson v. O.R. Anderberg Const., 586 N.W.2d 269 (Minn. 1998); Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878 (Minn. 2000). 6 In re Linehan, 594 N.W.2d 867, 885-87 (Minn. 1999); Witso v. Overby, 627 N.W.2d 63, 69-74 (Minn. 2001). 7 Straights and Gays for Equality v. Osseo Area Schs., No. 05–2100, 2007 WL 2885810 (D. Minn. Sept. 25, 2007). 8 Garcia v. Metro Gang Strike Force, No. 09–1996, 2012 WL 3839243 (D. Minn. Sept. 4, 2012). 9 Cooper v. Abdul-Aziz, No. 12–2422, 2015 WL 12552064 (D. Minn. Nov. 4, 2015). 10 Roederer v. J. Garcia Carrion, S.A., 732 F. Supp. 2d 836 (D. Minn. 2010). 11 Carlson, Inc. v. IBM Corp., No. 10–3410, 2014 WL 3700894 (D. Minn. July 25, 2014). 12 United States v. Lindsey, No. 10–15, 2014 WL 4113011 (D. Minn. Aug. 20, 2014).

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Judicial Profile

Hon. Ortrie D. Smith

Senior U.S. District Judge, Western District of Missouri by Steven Wolfe

Steven Wolfe graduated from the University of Missouri– Kansas City (UMKC) School of Law in 1990 and clerked for Hon. Ortrie Smith from 1995-2015. Prior to that, he clerked for Hon. Floyd R. Gibson, then a judge on the Eighth Circuit Court of Appeals. He has been clerking for Hon. Beth Phillips, chief judge for the Western District of Missouri since 2015. Wolfe has also been an adjunct professor at the UMKC School of Law since 2005, where he has taught classes on class actions and federal jurisdiction.

orth Law Publishers, Inc. operates a website called “The Robing Room,” where people are invited to anonymously rate federal judges. Evaluators must state how they came into contact with the judge (e.g., as a litigant, prosecutor, or civil defense attorney) and may rate the judge in a variety of areas on a scale from 1-10. Evaluators may also provide written comments. As one might suspect in a profession where decisions satisfy one party at the expense of the other, gleaning any value from the site’s contents is a hazardous endeavor. Nonetheless, on a lark, one day I looked at Judge Ortrie Smith’s “rating” and took note of one comment that has stuck with me. It was left by a civil litigator in private practice and said simply: “If I had an important decision that affected my life or family, I’d trust Judge Smith to make it.”1 Given the numerous decisions that a trial judge must make that directly affect the lives of individuals, I cannot imagine higher praise packed into a single sentence. Judge Smith was born in 1946 in Jonesboro, Ark., and lived in Trumann, Ark.2 At age seven, he got his first job—delivering The Jonesboro Sun from his bicycle. He then worked continuously until his formal retirement from the bench in August 2020. Judge Smith attributed his work ethic to his father, who was drafted into the Army the day before the attack on Pearl Harbor in December 1941. He served as a medic and saw action in France, Belgium, and Germany, including at the Battle of the Bulge, and was honored with the Silver Star, Bronze Star, and Purple Heart for his service. He had worked in the cotton fields before being drafted, but upon returning from the war, he worked in a local factory and then began working for an insurance company. The judge’s family moved to Hannibal, Mo., in 1959 after his father received a promotion.3 Two years later, his father received another promotion, the family moved to Kansas City, Mo., and Judge Smith began attending Raytown High School.4 During his junior year, he met his future wife, Kris, and resolved to get good grades to impress her. He was also on the football team and garnered recruiting interest from

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several universities.5 He eventually opted to attend the University of Missouri, where, as he has frequently stated, he was hit by some of the finest football players in the country. He stopped playing in the spring of his junior year, however. Realizing that he was heading for a major in history and a minor in English, Judge Smith returned to a passing thought he’d had in high school—he should go to law school.6 Judge Smith attended law school at the University of Missouri—Kansas City, where he finished in the top 10 percent of his class. During his third year, he worked for Professor Jim Jeans, who was then collaborating with Ralph Nader on legislation and other product liability issues. Judge Smith worked on proposed legislation for Professor Jeans and also assisted him in drafting a new County Charter for Jackson County, Mo.7 He had several job offers upon graduating in 1971, including one from John “Jack” Danforth, who was then the Missouri attorney general and who would later be a U.S. Senator and (briefly) the U.S. Ambassador to the United Nations. But Judge Smith rejected that offer and many others in favor of the Ewing Law Firm in Nevada, Mo., because of its reputation. He also wanted to live in a small town, which he thought would be a better place to raise a family.8

The Ewing Law Firm’s primary client was Farm & Home Savings Association, but the firm also represented other financial institutions, insurance companies, a local college, and, occasionally, individual clients. Judge Smith’s initial work focused on real estate development, insurance defense, and claims adjustment. At the time, there was no public defender’s office in the county, so he also accepted criminal appointments. That aspect of his work included three homicide cases, and he was also appointed as a special prosecutor in a homicide case. The nature of Judge Smith’s practice changed in the first half of the 1980s; he began doing more personal injury and domestic relations work, including private placement adoptions. He described adoption work as “terrifying” because of the risk of the birth mother changing her mind at the last moment, but also said it was rewarding and gratifying when the placement was successful. To this day, he remains in touch with some of the parents and children involved in his cases. The firm’s managing partner, Lynn Ewing, encouraged the younger attorneys to be involved in public service and expected them to join a civic club. Judge Smith exceeded those expectations. He joined the Optimist Club, was involved with the Community Council for the Performing Arts, served on the Red Cross Board, was a member of the Nevada School Board, and was active in his church. As he explains, he was trying to do his part to make Nevada the kind of place he would feel good about raising a family. He was also very active in the bar, serving on the Missouri Bar Board of Governors for 15 years and as president of the Missouri Bar in 1991-1992. Judge Smith had some interest in becoming a state judge when a vacancy opened in the late 1970s, but he was not selected by the governor. His interest in a judgeship receded but was resurrected when Bill Clinton was elected president in 1992, and to that end, Judge Smith contacted his friend Congressman Ike Skelton. The two met in the mid-1970s, when Congressman Skelton was running for his first term as representative and asked Judge Smith to help him; Judge Smith worked on each of Congressman Skelton’s campaigns until the early 1990s. Because there were no Democratic senators in Missouri at the time, the White House would look to the Democratic representatives (including Congressman Skelton) to suggest potential nominees. There were two vacancies on the court and three Democratic representatives in the Western District, however, and the three representatives could not agree on two nominees, which slowed the process considerably. Eventually—in June 1995—Judge Smith was nominated for one of the vacancies. His hearing was in early August 1995, and the Senate voted to confirm his nomination two weeks after that. The following month, he was in the courthouse in Kansas City, Mo. Judge Smith actively endeavored to ensure that being a federal judge did not change his outlook. He frequently asked his clerks if something he was going to do seemed “too federal judge-y.” He took to heart the words of

Judge Diana Murphy, then a judge on the Eighth Circuit Court of Appeals, who advised (in his words) that “judges, like whales, tend to get harpooned when they spout off at the surface.” And as a further show of his efforts to remain “grounded” (as he would phrase it), he kept a copy of his first reversal nearby.9 The Court of Appeals conveniently arranged it so that the two-word sentence “We reverse” appeared at the very end of the first page of the slip opinion. The slip opinion, with that sentence highlighted, sat in a frame on his desk from the time it was issued until he stepped down from the bench. He also strongly believed that civility was essential, not just to life in general but in particular to the administration of justice. To that end, he attached a copy of the “Principles of Civility” adopted by the Kansas City Metropolitan Bar Association to the initial standard Order issued in his civil cases. The initial Order advised—in all uppercase letters—that he expected the attorneys to adhere to those principles. He believed that if lawyers knew from the outset that he expected them to behave when interacting, they would be encouraged to do so. He also believed that client expectations were sometimes the source of strife between lawyers and that it would be helpful for lawyers if they could point their clients to something setting forth his expectations. And, on those occasions when his point seemed to have been lost, Judge Smith issued an Order directing the parties to re-review that Order; in some instances, he even required signed confirmation from the client that they had read it too. Often, a district judge’s work is of greater interest to the parties than to anyone else, but Judge Smith handled several cases that drew public interest. He presided over two trials in which female firefighters and employees in the Kansas City Fire Department prevailed on their claims of harassment and discrimination.10 His ruling that federal law preempted Missouri statutes designed to regulate the administration of the Affordable Care Act was (substantially) affirmed.11 He ruled that Faye Copeland, the oldest woman to receive a death sentence in the United States, was entitled to a writ of habeas corpus setting aside the sentence because of the prosecutor’s improper arguments during closing.12 There is one case that stands out from the rest: United States vs. Robert Courtney. Robert Courtney was a pharmacist. At the time, many chemotherapy treatments were in powder form and had to be compounded into a solution so they could be administered intravenously. Those medications were quite expensive, costing hundreds (and in some cases thousands) of dollars per dose. Over the course of approximately 10 years Courtney diluted the medication, thereby cutting his costs and garnering more profit for himself—and providing subor nontherapeutic medication to his cancer patients. Once the full scope of his crime was discovered, it was believed that he had delivered more than 98,000 diluted prescriptions to more than 4,200 patients. Courtney eventually pleaded guilty to tampering, misbranding, January/February 2021 • THE FEDERAL LAWYER • 31

and adulterating drugs. In exchange for Courtney’s help identifying his victims (so they could be notified), the government agreed to a binding plea agreement pursuant to which Courtney would be sentenced to 17½ to 30 years. The sentencing hearing was one of the most emotional events imaginable. It seemed as if every patient—or, in many instances, patients’ survivors—wanted to attend. Attendance in the courtroom was limited to four members of the press and Courtney’s few supporters, with the balance of the space allocated to the victims. The proceedings were broadcast in another room that was large enough to accommodate everyone else who wanted to observe. Many of the victims wrote letters, and Judge Smith—as was his custom—read every single one. But a significant number of patients and family members wanted to deliver their victim impact statements in court. The U.S. Attorney’s Office organized and pared down the number of individuals who spoke, but even with those efforts, the sentencing hearing lasted nearly three hours. I do not recall a sentencing hearing with so many victims and victim impact statements. And these were particularly gut-wrenching: people who had lost loved ones, people who never got better, people who survived— all had to wonder how much time had been lost and how much quality of life had been diminished because of Courtney’s actions. There were plenty of tears; many speakers brought pictures of their loved ones. The anguish and despair were palpable. The case garnered not just national but also international attention.13 Many articles about the sentencing quoted the following passage from Judge Smith: Mr. Courtney … I don’t think any human can understand or comprehend why a person would do what you did. Your crimes are a shock to the conscience of a nation, the conscience of a community, and the conscience of this court. You alone have changed the way a nation thinks: the way a nation thinks about pharmacists, the way a nation thinks about prescription medication, the way a nation thinks about those institutions that we trusted blindly. He concluded by stating, "Your crimes are a shock to the civilized conscience…. They are beyond understanding.” Judge Smith then sentenced Courtney to the maximum sentence permitted by the plea agreement: 30 years.14 It is somewhat ironic that the case that might be most commonly associated with Judge Smith was a criminal case, given that he found sentencing to be the most demanding part of the job. He would often say that “sentencing is hard, and it should be. Every 32 • THE FEDERAL LAWYER • January/February 2021

war the United States has fought has been about freedom, and taking away a person’s freedom should never be an easy task.” The anonymous civil litigator who would entrust decisions about his own life to Judge Smith recognized the qualities that marked his judicial career: a blend of pragmatism, fairness, compassion, and wisdom. And that litigator is not alone: I and many others who have been privileged to know him sought (and continue to seek) his advice on personal and professional matters. I, for one, cannot think of a single instance in which he steered me wrong. Judge Smith recently retired after 25 years on the bench (and, as he is proud to mention, nearly 70 continuous years of working). His impact on the legal profession, the Western District of Missouri, and those who knew him will endure. 

Endnotes Comment #9300 to Hon. Ortrie D. Smith, The Robing Room (Oct. 12, 2009), http://www. therobingroom.com/Judge.aspx?ID=1354 (last visited Aug. 5, 2020). And, to prove the hazardous nature of these ratings, two others—one from a prosecutor and one from a criminal defense attorney—were left on consecutive days, suggesting they were left by adversaries in the same case. Both complained about Judge Smith’s application of Rule 404(b) of the Federal Rules of Evidence—proving that if a judge can’t make everyone happy, he should strive to make everyone equally unhappy. 2 The primary sources of information in this article are (1) the author’s memories of conversations and experiences with Judge Smith and (2) the rough draft of an oral history of Judge Smith taken in 2019. 3 For those who may not know (or who have forgotten), Hannibal was “the boyhood home of Mark Twain [and] is famously known as the setting for Tom Sawyer and Huckleberry Finn.” Visit Hannibal—Hannibal, Missouri, https://www. visithannibal.com/ (last visited Aug. 5, 2020). 4 One of Judge Smith’s proudest honors was his induction as an inaugural member of Raytown High School’s Hall of Fame. Raytown Quality Schools, Alumni Hall of Fame / Meet the Class of 2005, https://www.raytownschools.org/ Page/1490 (last visited Aug. 5, 2020). 5 One was the University of Kansas. On his visit to the school, Judge Smith’s player-host was future NFL Hall of Famer Gale Sayers. 6 There was not a long history of lawyers in Judge Smith’s family. His great grandfather, Kirby Smith, had been a Justice of the Peace in Bay, Ark.—a position that did not require any particular education, much less a law degree. Kirby Smith had a single “law book”—a copy of the Arkansas General Assembly’s session laws from 1927—that, according to Judge Smith, his great grandfather kept on his 1

desk to delude people into thinking he knew something about the law. That book sat on the corner of Judge Smith’s desk for his entire tenure as a judge; he often said that he kept it there for the same reason as did his great grandfather. 7 At the time of his death, Professor Jeans was teaching at the Liberty University School of Law. The depth of Judge Smith’s appreciation for Professor Jeans is best demonstrated by the memoriam he wrote for the law school. Ortrie D. Smith, In Memoriam: Professor James W. Jeans, Sr., Man of Encouragement, 2 Liberty U. L. Rev. 1, 61 (2007), https://digitalcommons.liberty.edu/ cgi/viewcontent.cgi?referer=https://www. google.com/&httpsredir=1&article=1012&context=lu_law_review. 8 Judge Smith and Kris have four daughters. There is nothing in the world (except his grandchildren) that makes Judge Smith prouder than his daughters, and there will likely be some cross words directed by him to the author for “relegating” them to a footnote. But as I have tried to tell him before, the best stuff is in the footnotes. 9 United States v. Clarke, 110 F.3d 612 (8th Cir. 1997). 10 See Kline v. City of Kansas City, Mo., Fire Dep’t, 175 F.3d 660 (8th Cir. 1999), cert. denied, 528 U.S. 1155 (2000); Wedow v. City of Kansas City, Mo., 442 F.3d 661 (8th Cir. 2006). 11 See St. Louis Effort for AIDS v. Huff, 996 F. Supp. 2d 798 (W.D. Mo. 2014), aff ’d in part, 782 F.3d 1016 (8th Cir. 2015). 12 See Copeland v. Washington, 232 F.3d 969 (8th Cir. 2000), cert. denied, 532 U.S. 1024 (2001). Faye Copeland and her husband, Ray, were both convicted of five murders that were part of a modern-day cattle rustling scheme. Ray recruited homeless men to bid on cattle at auctions; he opened checking accounts in their names and provided them with checks to pay for the cattle. Ray sold the cattle before the checks bounced, and the homeless men were killed to prevent further investigation of the fraud. The Copelands’ crimes have been chronicled in various articles and documentaries, including on the TV series Wicked Attraction. “Wicked Attraction” Murder at Twilight (TV Episode 2008)–IMDb, https://www.imdb.com/title/ tt1316393/ (last visited Aug. 7, 2020). 13 Courtney’s case was profiled by the television show American Greed. “American Greed” Diluted Trust: Robert

Courtney (TV Episode 2008) — IMDb, https://www.imdb.com/title/tt1501775/ (last visited Aug. 7, 2020). 14 While the 30-year sentence was permitted by the plea agreement, it was actually above the top of the guideline range. The sentencing took place in 2002, approximately two years before the Supreme Court decided the sentencing guidelines were not mandatory, see United States v. Booker, 543 U.S. 220 (2005), so a detailed analysis explaining the legal basis for the departure was required. Instead of providing that analysis in open court, Judge Smith reduced it to writing. United States v. Courtney, 240 F. Supp. 2d 1052 (W.D. Mo. 2002) (subsequent history omitted).

Judicial Profile Writers Wanted

The Federal Lawyer is looking to recruit current law clerks, former law clerks, and other attorneys who would be interested in writing a judicial profile of a federal judicial officer in your jurisdiction. A judicial profile is approximately 1,500-2,000 words and is usually accompanied by a formal portrait and, when possible, personal photographs of the judge. Judicial profiles do not follow a standard formula, but each profile usually addresses personal topics such as the judge’s reasons for becoming a lawyer, his/her commitment to justice, how he/she has mentored lawyers and law clerks, etc. If you are interested in writing a judicial profile, we would like to hear from you. Please send an email to Lynne Agoston, managing editor, at social@fedbar.org.

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Brick-by-Brick: The Case for Foundational Discovery BY REBEKAH L. BAILEY, STEPHEN J. TETI, AND KATE A. FISHER

n civil litigation, a case is built with discovery. Each piece of information gathered is but a brick compiled to construct a wall of evidence in preparation for trial. These bricks come in many sizes. Some are large, representing a smoking gun on crucial elements of the legal claims. Others are small, but when stacked together, these small bricks provide context to ensure the stability of the wall and build a solid foundation for the larger components. This “foundational discovery” is more essential today than ever.

Modern discovery involves the exchange of voluminous documents and complex electronically stored information (ESI). Litigators must properly understand ESI to use the evidence effectively. Litigators must therefore learn about the information they receive through the discovery process. Yet, there has been a growing call by some practitioners in recent decades to narrow the scope of contextual information available through the discovery process, making it harder for parties to truly understand and effectively use this foundational information in building their cases. Some practitioners vilify anything that does not sharply relate to the merits of the case, including basic foundational discovery, mislabeling it all broadly as “discovery on discovery.” Such practitioners have been increasingly successful under the most recent amendments to the discovery rules in convincing courts to disfavor “discovery on discovery” as overreaching and unnecessary to advance

litigation. These efforts to broadly label discovery that is not strictly merits-related as “discovery on discovery” outside the reach of Rule 26 run contrary to the longstanding spirit of the discovery process and threaten parties’ proper construction of a wall of evidence. This article illustrates that foundational discovery is alive and well and that it can be obtained formally and informally, despite the most recent changes to the rules. This article examines the various categories of foundational information that have been swept up into a discovery-on-discovery void and the circumstances when each should be appropriately discoverable.

The Broad and Liberal Construction of the Federal Rules The U.S. Supreme Court has long held that the discovery provisions in the Federal Rules of Civil Procedure “are to be accorded a broad and liberal treatment.”1 This reflects the understanding that “mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”2 For almost 60 years, Rule 26 has more or less defined the parameters of discoverability as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).3 January/February 2021 • THE FEDERAL LAWYER • 35

Under this definition of discoverability, the Supreme Court explained that “discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues …. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits.”4 For example, information related to jurisdiction, class certification, or other non-merits issues are still discoverable under the rules.5 The Advisory Committee recognized with the 2000 amendments that a “variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action,” including “[i]nformation about organizational arrangements or filing systems of a party … if likely to yield or lead to the discovery of admissible information.”6 Such information is foundational to the discovery process.

A Concerted Effort Over the last 30 or so years, “[t]he overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case, with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.”7 Yet during the same timeframe, some have sought to narrow the scope of discoverability, specifically as it relates to foundational information helpful to understanding the discovery process itself. It appears that it was not until 1998 that the first federal court used the phrase “discovery on discovery” to describe a request for all documents relating to efforts to produce documents responsive to previous discovery requests.8 The court ruled it “foolhardy” to permit such discovery without a “clear showing” that the discovery would lead to admissible evidence.9 “Discovery on discovery” originally focused on errors in an opposing party’s discovery methodologies but then morphed slowly into a broader concept, describing requests for information into the preservation, collection, review, and production of information and documents. Attacks on requests for such information increased with frequency after the 2006 amendments to the Federal Rules of Civil Procedure despite the fact that this so-called “discovery on discovery” had always generally been permitted.10 Courts facing these disputes analyze the requests in one of three ways.11 The first group takes the traditional approach and permits such discovery without requiring that the requesting party make any additional showing of specific need.12 The second allows foundational discovery if the requesting party presents a “legitimate issue” of wrongdoing on the part of the producing party, such as spoliation or impermissible withholding of documents.13 The quantity and quality of proof necessary to meet this burden varies among the courts. The third group, representing a compromise between the first two, permits such discovery when documents are unavailable or “when there are indicia that the discovery process was not thorough, reliable, or transparent.”14 The resulting types of permissible foundational discovery recognized by courts prior to 2015 included the following: • D iscovery into the opposing party’s efforts to comply with discovery requests;15 the disclosure of retention, preservation, and collection methods.16 • Inquiry into document loss and destruction.17 • Interrogatories concerning efforts made to comply with discovery requests and ESI search methodology as well as identification 36 • THE FEDERAL LAWYER • January/February 2021

of the people or entities who supplied or searched their documents for production.18 • Deposition testimony and other discovery into topics involving the opposing party’s computer systems and networks as well as efforts to gather and produce ESI.19 • Mandated involvement by the parties’ IT experts to facilitate the provision of such information.20

The Modern Rule Federal Rule of Civil Procedure 26 was amended in 2015 and now defines discoverability as “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”21 For the first time since 1946, the text of the relevancy requirement for discoverability no longer expressly declares information about the “existence, description, nature, custody, condition, and location” of documents and things to be discoverable in the body of the rule. The 2015 Advisory Committee did not provide a satisfactory explanation as to why this longstanding language was suddenly removed. In fact, the notes claim the change was a simple matter of housekeeping, and they urge readers not to interpret further meaning into the removal at all. The Advisory Committee note states: Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples. The discovery identified in these examples should still be permitted under the revised rule when relevant and proportional to the needs of the case. Framing intelligent requests for electronically stored information, for example, may require detailed information about another party’s information systems and other information resources.22 Some worry that removing reference to foundational discovery will further corrode the scope of discoverability irrespective of the assurances of the Advisory Committee’s notes. As one court has stated many times since the change: The Court regrets this deletion. Moving things out of the statute’s text often creates mischief, especially for courts that rely heavily on the text’s plain language. The drafters might be astonished how often the Court sees objections to interrogatories and requests that seek basic information about documents. The rule is well-established because the deleted language was in the rule; now that the language is not in the rule, the rule may be eroded or, more likely, ignored or overlooked by those who do not spend time in the advisory notes’ thicket. What the advisory comments describe as “clutter” is a simple instruction to practitioners who do not practice in federal court every day for every case. This deletion might incrementally increase unnecessary litigation rather than shorten it. Some of the amendments seem more designed to help the nation’s large corporations, represented by some of the nation’s most expensive law firms, cut down expenses than they are to help courts and practitioners in more routine cases.23 Those fears are well founded. Some have now attempted to label this plainly permissible discovery—“the existence, description, nature, custody, condition,

and location” of documents and things—as the evil and ever-broadening “discovery on discovery.” As the argument goes, anything not directly tied to an element of the underlying claims and defenses is no longer permissible grounds for discovery. Alternatively, these litigants often argue that discovery of such information is only permitted when a need is demonstrated. As the court in Begay v. United States feared, the comment’s insistence that the scope of relevancy did not change is at risk of being ignored, and the longstanding spirit of discoverability undermined.

A Path Forward Moving forward from the 2015 amendments, courts should be wary of attempts to expand the types of foundational information labeled as “disfavored” in recognition of the value in exchanging this information to streamline discovery and ensure the integrity of the discovery process. Practitioners seeking foundational information should first turn to more efficient informal channels. When formal discovery is required, practitioners should invoke the comments to the 2015 amendments when possible. Far from restricting foundational discovery, these amendments protect litigants’ rights to such information. Finally, in certain circumstances litigants may be entitled to a “behind the scenes” view into the other party’s discovery methodologies. As further explained below, courts should permit “behind the scenes” foundational discovery when a requesting party can establish a lack of cooperation by the party in question, as well as a reasonable suspicion of deficiency.

The Case for Informal Discovery The 2008 Sedona Conference Cooperation Proclamation provides practitioners with a path for obtaining foundational information through early and informal disclosures.24 Informal discovery typically reduces costs to litigants and decreases the burden on courts.25 Indeed, a primary motivator for the Rules Committee in enacting its broad array of amendments in 2015 was to reduce costs and delays by increasing cooperation and advocating early, active judicial case management.26 Given the preference for cooperation, the most efficient and effective way for parties to obtain foundational discovery is informally during discovery conferences. Rule 26(f )(2) provides that the parties shall discuss at the initial conference between and among counsel “any issues about preserving discoverable information; and develop a proposed discovery plan.”27 The discovery plan must include, in part: “the subjects on which discovery may be needed” and “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.”28 Thus, the rules permit the parties to obtain reasonable context early on to assist in drafting discovery requests, meaningfully reviewing produced documents, and beginning to troubleshoot identified discovery issues. The scope of foundational information available through informal discovery extends further in many jurisdictions. The Seventh Circuit, along with several federal district courts, has elaborated on the foundational information subject to informal discovery through the drafting of guidelines and checklists.29 The Northern District of California, for example, permits parties at the discovery conference to discuss preservation, the systems containing discoverable ESI, search and production, discovery phasing, and opportunities to reduce costs and increase efficiencies.30 The parties are further encouraged to discuss the sources, scope, and type of ESI that has been and will

be preserved and may include date ranges, identity, and number of potential custodians.31 These courts make the assumption that foundational discovery is so obviously essential that it should happen early, often, and outside of formal channels.32 The informal discovery process provides practitioners with an effective tool for learning about the extent and form of the other parties’ sources of potentially relevant information. This provides the parties with the opportunity to more effectively understand, frame, and respond to ESI discovery issues, reduce costs, and assist the parties and the court in the event of a dispute involving ESI issues. Given this strong support for informal discovery, a party seeking foundational information should seek out answers early in the discovery conference, reserving formalities for unforeseen circumstances or situations when the party suspects discovery deficiencies.

Context Discovery If a party cannot obtain foundational information through informal means, all is not lost, particularly if the information sought provides context to information exchanged that bears on the claims or defenses in litigation. “Context discovery” is what we call the type of foundational information that allows the parties to better understand other information they obtain in discovery. This especially includes “the existence, description, nature, custody, condition, and location” of documents and things permitted by the committee notes.33 It also includes information necessary to understand more complicated ESI productions. For example, in Winfield v. City of New York,34 the plaintiffs sought depositions about defendants’ data systems. The plaintiffs moved to compel, and the defendant moved for a protective order. The court permitted the discovery and ordered the parties to cooperate on drafting the topics. The court acknowledged that these depositions “serve to aid discovery and the search for relevant information and/or provide an explanation of data produced and authentication of ESI.” The court found that plaintiffs had demonstrated an “adequate factual basis” such that they required certain additional discovery for their expert to be able to analyze the data produced from the databases: In addition to the context typically required to understand the significance of a traditional document, the ability to fully understand ... data within a database requires knowledge of data relationships, what the information represents, and how it was generated. Without this information, analyzing databases is akin to seeing a thousand-piece jigsaw puzzle without an illustration that shows the final completed puzzle. The jigsaw puzzle can be assembled, but only with great effort and with low efficiency.35 “[T]he overall purpose of discovery under the Federal Rules is to require the disclosure of all relevant information, so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts, and therefore embody a fair and just result.”36 Refusal to produce such basic yet critical information runs afoul of Fed. R. Civ. P. 26, may unnecessarily increase the costs of litigation and, ultimately, unjustly affect the outcome of the case. Courts should continue to permit foundational discovery that seeks context.

“Behind the Scenes” Discovery This third category of foundational information is the type that traditionally has been tagged as “discovery on discovery,” by producing January/February 2021 • THE FEDERAL LAWYER • 37

parties. With this discovery, one party seeks a “behind the scenes” view of other’s methodologies, including specifics about the parameters of preservation, collection, review, and production. One reason a practitioner may seek “behind the scenes” discovery is to ensure that the methodologies used by the opposing party to identify and collect relevant information does not erroneously exclude pertinent documents. Just as with context discovery, a party should first attempt to obtain “behind the scenes” information early through the informal discovery process, citing applicable district court checklists or guidelines that require or encourage its disclosure.37 This process allows for deliberative discussions and often results in a stipulated ESI protocol.38 A protocol is a roadmap to the discovery process. It allows the parties to streamline efforts, increase transparency and predictability, and, as a result, minimize the potential for subsequent disputes. As with other types of foundational information, this is also the preferred method for obtaining “behind the scenes” discovery. When a requesting party cannot obtain “behind the scenes” information through informal discussions, it should probe into the discovery process using traditional discovery tools. A requesting party can, for example, ask a fact witnesses during her deposition about the existence of potentially relevant documents and then follow up by specifically requesting production of those documents. Previously produced ESI may also provide clues about other documents withheld from production. For example, document review platforms typically offer analytics that can be used to identify whether a production excludes emails from a material custodian or from a particular timeframe. A review of email threads may yield additional relevant but unproduced discussions or may reveal the existence of an unproduced attachment. Third-party subpoenas may also uncover hidden gems. After such probing, if the requesting party has reason to suspect that the deficiencies are systemic, he should again attempt to engage in informal discussions to remedy the issue. If the producing party refuses to cooperate, the requesting party should continue to probe using formal discovery and eventually seek court assistance if and only when warranted.39 There is support, for example, for deposing a party under Rule 30(b)(6) to inquire about the existence of documents, preservation efforts, and the scope of production.40 As stated above, some courts have required a showing of an “indicia” of issues with the discovery process, while others have required a “clear showing” of the specific discovery deficiency.41 Another court has permitted inquiry into the process when the responding party’s search has uncovered no responsive documents.42 The spectrum is broader still, with some courts requiring an “adequate factual basis,” “some showing,” or a “reasonable deduction.”43 How stringently courts apply these tests also varies depending on the factual circumstances. Because it is so difficult for a party challenging another’s discovery process to prove deficiencies under these circumstances, courts should not further disadvantage requesting parties by erecting insurmountable standards that require requesting parties to prove wrongdoing using the very evidence that is being concealed from them. This creates a chicken and egg conundrum, wherein discovery malfeasance is suspected but cannot be explored without an initial showing of wrongdoing. Such higher standards further incentivize parties to dig their heels in and refuse to cooperate or be transparent—behavior that is contrary to the Advisory Committee’s goals in amending the Federal Rules of Civil Procedure in 2015. To this end, courts should permit “behind the scenes” foundational discovery when a requesting party can establish a lack of transparency and co38 • THE FEDERAL LAWYER • January/February 2021

operation by the party in question, as well as a reasonable suspicion of a deficiency. Trial courts, of course, have an incentive to curb unnecessary backseat driving and to ensure that the discovery process does not become unduly expansive, elongated, or expensive. “Behind the scenes” discovery can be proportionately consistent with these goals. Courts can, for example, order a producing party to explain methodologies so that the parties can agree upon a collection process or identify the reason for the deficiency and negotiate a resolution.44 Courts could also order sample productions so that the requesting party can learn more about the documents withheld so as to better inform negotiations into methodology modifications.45

Concluding Thoughts Foundational discovery is just that: foundational. Our system of litigation is built upon the broad and liberal exchange of discovery, and the 2015 amendments to Rule 26 did not alter the availability or necessity of foundational discovery. Litigants should be cognizant of the comments to the 2015 amendments and should not back down in the face of an opposing counsel’s contention that “discovery on discovery” is disfavored. 

Rebekah L. Bailey is a partner at Nichols Kaster, PLLP, where she serves as the firm’s eDiscovery committee co-chair and practices as a founding member in the Civil Rights and Impact Litigation Practice Group. Bailey focuses on class actions and government fraud. She is a member of the Sedona Conference Working Group 1 and a board member of the Complex eDiscovery Litigation Forum. Stephen J. Teti is a senior associate at Block & Leviton LLP. His practice focuses on securities fraud and antitrust class actions. Kate A. Fisher is a case development attorney for Nichols Kaster, PLLP and works in the firm’s Civil Rights and Impact Litigation Practice Group. In this role, she investigates new cases and works with other members of the group to advance litigation.

Endnotes Hickman v. Taylor, 329 U.S. 495, 506-07 (1947) (“[T]he discovery provisions are to be applied as broadly and liberally as possible.”); see also In re Takata Airbag Prods. Liab. Litig., No. 15-md-2599, 2017 WL 8812734, at *5 (S.D. Fla. July 5, 2017); Marook v. State Farm Mut. Auto. Ins. Co., 259 F.R.D. 388, 394 (N.D. Iowa 2009) (“Discovery rules are to be broadly and liberally construed in order to fulfill discovery’s purpose of providing both parties with information essential to proper litigation of all relevant facts, to eliminate surprise, and to promote settlement.”). 2 Hickman, 329 U.S. at 507; see also Marook, 259 F.R.D. at 394 (explaining discovery provides “both parties with ‘information essential to proper litigation of all relevant facts, to eliminate surprise, and to promote settlement.’” (quoting Rolscreen Co. v. Pella Prods., 145 F.R.D. 92, 94 (S.D. Iowa 1992)); Fed. R. Civ. P. 26 advisory committee’s note to 1946 amendment (“The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case.” (citing cases)). 1

Fed. R. Civ. P. 26(b)(1) (2014) (emphasis added). This rule, like all rules, has changed slightly over time in ways that are immaterial to this discussion. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978) (quoting Fed. R. Civ. P. 26(b)(1)); Hickman, 329 U.S. at 503 (quoting the original Rule 26). 4 Oppenheimer Fund, Inc., 437 U.S. at 351 (citing Hickman, 329 U.S. at 500-01). 5 Id. at 351 n.13. 6 See Fed. R. Civ. P. 26 advisory committee’s note to 2000 amendment. 7 Bd. of Regents of Univ. of Nebraska v. BASF Corp., No. 04-cv-3356, 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007); see also United States v. All Assets Held at Bank of Julius Baer & Co., Ltd., No. 04-cv-798, 2019 WL 1167743, at *6 (D.D.C. Mar. 13, 2019). 8 Hanan v. Corso, No. 95-cv-0292, 1998 WL 429841, at *7 (D.D.C. Apr. 24, 1998). The court denied a motion to compel after the responding party provided multiple declarations detailing its efforts to comply with discovery requests, and the requesting party failed to articulate what additional information it stood to obtain. 9 Id. 10 See, e.g., Ruiz-Bueno v. Scott, No. 12-cv-809, 2013 WL 6055402, at *1 (S.D. Ohio Nov. 15, 2013) (“[T]his is the type of information which can assist a party in structuring his or her discovery or in pursuing discovery effectively and efficiently. For that reason the drafters of the Rule [26(b)] have deemed it ‘relevant’ for discovery purposes. In fact, this concept has been present in Rule 26 since at least 1946.”); see also Burnett v. Ford Motor Co., No. 13-cv-14207, 2015 WL 4137847, at *9-11 (S.D. W. Va. July 8, 2015) (“Rule 26(b)(1) may be construed to allow discovery into document retention and destruction policies by permitting [p]arties [to] obtain discovery regarding any matter … including the existence, description, nature, custody, condition, and location of any . . . documents,” and noting that “broader ‘discovery on discovery’ may be appropriate and relevant under Rule 23(b) when it aids a party in the presentation of its case.” (internal citations and quotations omitted)); Cotton v. Costco Wholesale Corp., No. 12-cv-2731, 2013 WL 3918875, at *1-3 (D. Kan. July 24, 2013) (denying defendant’s motion for protective order and noting that “it is somewhat difficult for a litigant to evaluate an opposing party’s efforts to search for and produce ESI without some information regarding the steps taken to accomplish this task.”). 11 In re Takata Airbag Prods. Liab. Litig., No. 15-md-2599, 2017 WL 8812734, at *5-6 (S.D. Fla. July 5, 2017) (collecting cases), report and recommendation adopted, No. 14-cv-24009, 2018 WL 1859338 (S.D. Fla. Feb. 6, 2018). 12 Id. (citing Sharma v. BMW of N. Am., LLC, No. 13-cv-02274, 2016 WL 1019668, at *4 (N.D. Cal. Mar. 15, 2016), and Burd v. Ford Motor Co., No. 13-cv-20976, 2015 WL 4137915 at *9 (S.D. W. Va. July 8, 2015) (“Contrary to Ford’s contentions, discovery of document retention and disposition policies is not contingent upon a claim of spoliation or proof of discovery abuses . . . .”)); see also King v. Akima Glob. Servs., LLC, 323 F.R.D. 403, 408 (S.D. Fla. 2017) (acknowledging “litigants in lawsuits in this district routinely seek Rule 30(b)(6) testimony about the existence and timing of litigation holds and the steps taken to locate responsive documents and electronically stored information.”) (emphasis in original); Burnett, 2015 WL 4137847, at *9 (“[B]roader discovery on discovery may be appropriate and relevant under Rule 26(b) when it aids a party in the presentation of its case.”). 3

Takata, 2017 WL 8812734, at *5-6 (citing Cableview Comms., Inc. v. Time Warner Cable Se., LLC, No. 13-cv-306, 2015 WL 12838175, at *6 (M.D. Fla. May 4, 2015) (holding that the “discoverability of document retention policies hinges upon whether spoliation is actually at issue”)). Courts employing these stricter standards often note that such discovery is “disfavored.”See, e.g., Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 125 (E.D. Mich. 2019), which runs contrary to the former language of Rule 26 and the advisory committee notes. 14 Takata, 2017 WL 8812734, at *5-6 (citing Sharma, 2016 WL 1019668, at *4, and Burd, 2015 WL 4137915 at *9 (“Plaintiffs have identified several instances in which document productions have been slow-to-come, incomplete, or inconsistent . . . and . . . supplied excerpts of deposition transcripts in which key employees testified to performing either limited searches for relevant documents, or no searches at all.”)); see also Sinclair Wyo. Ref. Co. v. A&B Builders, Ltd., No. 15-cv-91, 2017 WL 10309306 (D. Wyo. Oct. 31, 2017) (finding “more than a mere suggestion” of spoliation so to permit requested discovery); Ruiz-Bueno, 2013 WL 6055402, at *2 (holding evidentiary hearing when party’s efforts to comply with proper discovery requests were reasonably called into question). 15 See, e.g., Ruiz-Bueno, 2013 WL 6055402, at *2-4; Burd, 2015 WL 4137915 at *8-10; Vieste, LLC v. Hill Redwood Dev., No. 09-cv-4024, 2011 WL 2198257, at *3-4 (N.D. Cal. June 6, 2011). 16 See, e.g., Burnett, 2015 WL 4137847, at *9; Sprint Comms. Co., L.P. v. Comcast Cable Comms., LLC, No. 11-cv-2684, 2015 WL 3742929 (D. Kan. June 15, 2015); S2 Automation LLC v. Micron Tech., Inc., No. 11-cv-884, 2012 WL 3656454, at *32 (D.N.M. Aug. 9, 2012); Fleming v. Escort, Inc., No. 12-cv-66, 2014 WL 4853033, at *6 (D. Id. Sep. 29, 2014); Vieste, LLC, 2011 WL 2198257, at *1-4. 17 See, e.g., Sprint Comms., 2015 WL 3742929, at *9; Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 232 (E.D.N.Y. 2007) (compelling interrogatory response to identity of persons who supplied or participated in supplying documents that were produced in response to a request for production); McNearney v. Wash. Dep’t of Corr., No. 11-cv-5930, 2012 WL 3155099, at *6 (W.D. Wash. Aug. 2, 2012). 18 See, e.g., Ruiz-Bueno, 2013 WL 6055402, at *2-4; Am. Home Assur. Co. v. Greater Omaha Packing Co., No. 11-cv-270, 2013 WL 4875997 (D. Neb. Sep. 11, 2013); In re Facebook Privacy Litig., No. 10-cv-2389, 2015 WL 3640518, at *2 (N.D. Cal. June 11, 2015). 19 See, e.g., Cotton v. Costco Wholesale Corp., No. 12-cv-2731, 2013 WL 3918875, at *1-3 (D. Kan. July 24, 2013) (“[I]t is somewhat difficult for a litigant to evaluate an opposing party’s efforts to search for and produce ESI without some information regarding the steps taken to accomplish this task”); New Orleans Reg. Phys. Hosp. Org., Inc. v. United States, 122 Fed. Cl. 807, 818 (Fed. Cl. 2015). 20 See, e.g., Burnett, 2015 WL 4137847 at *11. 21 Fed. R. Civ. P. 26(b)(1). The rule also now has a proportionality requirement for discoverability. Id. 22 Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendment; see also Small v. WellDyne, Inc., No. 16-cv-62, 2017 WL 2484181, at *6 (E.D.N.C. June 8, 2017) (citing the committee notes to continue to allow discovery of the identity of persons with case-related information). 23 Begay v. United States, No. 15-cv-0358, 2018 WL 557853, at *8 & n.1 (D.N.M. Jan. 23, 2018) (emphasis added); accord Tanner v. McMurray, No. 17-cv-0876, 2019 WL 2008991, at *48 (D.N.M. May 7, 2019); Bhasker v. Kemper Cas. Ins. Co., 361 F. Supp. 3d 1045, 1115 13

January/February 2021 • THE FEDERAL LAWYER • 39

(D.N.M. 2019); Kennicott v. Sandia Corp., No. 17-cv-0188, 2019 WL 366883, at *9 (D.N.M. Jan. 30, 2019); In re Santa Fe Nat. Tobacco Co. Mktg. & Sales Practices & Prod. Liab. Litig., No. 16-md-2695, 2018 WL 4200315, at *10 (D.N.M. Aug. 31, 2018); Landry v. Swire Oilfield Servs., LLC, 323 F.R.D. 360, 379 (D.N.M. 2018); Benavidez v. Sandia Nat’l Labs., 319 F.R.D. 696, 717 (D.N.M. 2017); XTO Energy, Inc. v. ATD, LLC, No. 14-cv-1021, 2016 WL 1730171, at *12-16 (D.N.M. Apr. 1, 2016). 24 The Sedona Conference, The Case for Cooperation, 10 Sedona Conf. J. 339 (2009), https://thesedonaconference.org/sites/default/ files/publications/The%20Case%20for%20Cooperation_0.pdf. 25 See The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 78 (2018), https:// thesedonaconference.org/sites/default/files/publications/The%20 Sedona%20Principles%20Third%20Edition.19TSCJ1.pdf (“[C] ooperation is fundamentally a voluntary endeavor that requires the development and maintenance of trust between two or more parties, and a relatively equal and balanced exchange of non-protected information. If both requesting and responding parties voluntarily cooperate to evaluate the appropriate procedures, methodologies, and technologies to be employed in a case, both may potentially achieve significant monetary savings and non-monetary efficiencies.”). 26 Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure, 259-60 (Aug. 2013), https:// www.uscourts.gov/sites/default/files/2013-08-rules_published_for_ comment-preliminary_draft_final_0.pdf. 27 Fed. R. Civ. P. 26(f )(2). 28 Fed. R. Civ. P. 26(f )(3)(B)-(C). 29 See, e.g., Principles for the Discovery of Electronically Stored Information in Civil Cases, U.S. District Court for the District of Maryland, https://www.mdd.uscourts.gov/sites/mdd/ files/ESI-Principles.pdf (last visited June 30, 2020); Guidelines for the Discovery of Electronically Stored Information, U.S. District Court for the Northern District of California (Dec. 1, 2015), https://cand.uscourts.gov/filelibrary/1117/ESI_ Guidelines-12-1-2015.pdf; Guidelines Addressing the Discovery of Electronically Stored Information, U.S. District Court for the District of Colorado (Sept. 1, 2014), http://www.cod.uscourts. gov/Portals/0/Documents/Forms/CivilForms/E-Discovery_ Guidelines.pdf. 30 Guidelines, N. D. Cal., supra note 29, at 2. 31 Id. 32 Id. at 3 (The Court “strongly encourages an informal discussion about the discovery of ESI (rather than deposition) at the earliest reasonable stage of the discovery process.”). 33 Fed. R. Civ. P. 26 advisory committee’s note to 2013 amendment. 34 No. 15-cv-5236, 2018 WL 840085, at *5-7 (S.D.N.Y. Feb. 12, 2018). 35 Id. at *6 (quoting The Sedona Conference, The Sedona Conference Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, 15 Sedona Conf. J. 171, 177 (2014)); see also Jones v. BNSF Ry. Co., No. cv18-146, 2019 WL 6728429 (D. Mont. Dec. 11, 2019) (permitting plaintiffs to take the deposition of “individuals capable of answering questions regarding the creation and sharing of information by participants in the PEPA Board meeting relating to Jones’s 40 • THE FEDERAL LAWYER • January/February 2021

termination …. [H]e or she must know how records are compiled and shared for review by the PEPA Board.”). 36 TIC Park Ctr. 9, LLC v. Cabot, No. 16-cv-24569, 2017 WL 3034547, at *2 (S.D. Fla. July 18, 2017). 37 See, e.g., Guidelines, N. D. Cal., supra note 29; Guidelines, D. Colo., supra note 29; Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”), U.S. District Court for the District of Delaware, https://www.ded.uscourts.gov/sites/ ded/files/pages/Electronic%20Discovery%20Default%20Standard_0. pdf (last visited June 30, 2020); and Guidelines for Cases Involving Discovery of Electronically Stored Information [ESI], U.S. District Court for the District of Kansas ( July 18, 2013), http://ksd. uscourts.gov/wp-content/uploads/2015/10/Guidelines-for-casesinvolving-ESI-July-18-2013.pdf. 38 See, e.g., CBF Industria de Gusa S/A v. AMCI Holdings, Inc., No. 13-cv-2581, 2019 WL 3334503, at *17-18 (S.D.N.Y. July 25, 2019); Sinclair Wyo. Ref. Co. v. A&B Builders, Ltd., No. 15-cv-91, 2017 WL 10309306 (D. Wyo. Oct. 31, 2017) (finding enough evidence on spoliation to permit discovery on “hold” requests). Notably, even in these scenarios, once “relevance of the information sought or an adequate factual basis” is shown, the responding party has the burden of demonstrating good cause for withholding said information. Winfield v. City of New York, 15-cv-05236, 2018 WL 840085, at *4 (S.D.N.Y. Feb. 12, 2018). 39 It is important not to wait too long as courts are less willing to broaden the scope of discovery shortly before the discovery process ends. 40 See M.A. v. Wyndham Hotels & Resorts, Inc., Nos. 2:19-cv-849, 2:19cv-755, 2020 WL 1983069, at *5 (S.D. Ohio Apr. 27, 2020). 41 See, e.g., Brewer v. BNSF Ry. Co., No. 14-cv-65, 2018 WL 882812, at *2 (D. Mont. Feb. 14, 2018); see also Commins v. NES Rentals Holdings, Inc., No. 3:16CV-00608, 2018 WL 3186983, at *9 (W.D. Ky. June 28, 2018) (employing “close scrutiny” on a request for foundational discovery). 42 McMaster v. Kohl’s Dep’t Stores, Inc., No. 18-13875, 2020 WL 755379, (E.D. Mich. Feb. 15, 2020) (holding that when no documents can be found, “it is appropriate to require the Defendant to produce a declaration under oath, signed by the person or persons conducting the search for requested material, and stating in detail what was done to locate the documents”). 43 F.F.T., LLC v. Sexton, No. 1:19-cv-03027, 2020 WL 3258623, at *3 (S.D. Ind. June 15, 2020) (granting motion to compel where plaintiff identified a “clearly responsive document” the defendants failed to produce); Crocs, Inc. v. Effervescent, Inc., No. 06-CV-00605, 2017 WL 1325344, *8 (D. Colo. Jan. 3, 2017) (“[S]uch discovery will be allowed if a party’s efforts to comply with proper discovery requests are reasonably drawn into question.”), objections overruled, 2017 WL 1325171 (D. Colo. Feb. 24, 2017); Freedman v. Weatherford Int’l LLC, No. 12 Civ. 2121, 2014 WL 4547039, at *12 (S.D.N.Y. Sept. 12, 2014) (acknowledging that discovery designed to test the sufficiency of discovery efforts to capture relevant material may be appropriate where party makes “some showing” the production is incomplete). 44 See, e.g., Progressive Cas. Ins. Co. v. Delaney, No. 2:11-CV-00678, 2014 WL 3563467, at *10 (D. Nev. July 18, 2014) (“In the handful of cases that have approved technology assisted review of ESI, the courts have required the producing party to provide the requesting party with full disclosure about the technology used, the process, and the methodology, including the documents used to ‘train’ the computer.”).

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Availability of Treatment and Rehabilitation in Federal Prison: The Critical Role of the Presentence Report MARC BLATSTEIN, D.P.M.; FAY F. SPENCE, J.D.; E.J. HURST II, J.D.; AND MAUREEN BAIRD

risoners have a constitutional right to adequate medical care,1 but what that means and how to get needed treatment are often not well understood by attorneys representing criminal defendants. This article attempts to address that knowledge deficit by explaining the medical, mental health, and substance abuse programs and policies in the federal Bureau of Prisons (BOP), as well as some of the educational, vocational, and other available programs intended to rehabilitate inmates and prepare them for return to society. Equally important, the article explains the critical role of the presentence report (PSR) in determining whether and how needed treatment and programs will be available to a defendant. Documentation is paramount, and the diligent attorney must be proactive in gathering and supplying the appropriate documentation to the probation officer preparing the PSR and to the court, along with a sentencing memorandum advocating for the defendant’s desired sentencing outcome and institutional placement, supported by the sentencing factors set forth in 18 U.S.C. § 3553(a).

The PSR plays a critical role in a defendant’s post-conviction life. In federal court, the sentencing judge relies on the report to determine sentencing guidelines, departures, and statutory sentencing considerations under 18 U.S.C. § 3553(a). The BOP relies on the PSR to make decisions about custodial placement, security classification, educational/vocational needs, and medical/psychological treatment needs. Even once the defendant is on supervised release after incarceration, the PSR influences the probation officer’s supervision of the defendant and the requirements of supervision. In short, the PSR is now part of the defendant’s permanent record and is considered the gospel truth about the defendant. It truly is “the gift that keeps on giving,” so accuracy is key. Given the PSR’s permanence and omnipresence, one cannot overstate its importance or the need for accuracy. Counsel must object to inaccurate facts and omissions of important information in the report. Once the court has made final rulings on all objections, and before the PSR is sent to the BOP, counsel must ensure that

the report is updated in accordance with the court’s ruling. Asking to amend the PSR later, when an inmate is already in the BOP, asks a court to change positions that it has already adopted as accurate. Even if this can be done—a big if—the amendment process can take years and many attorney hours to complete.2

Components of the Federal PSR First and foremost, the PSR provides details about the offense for which a defendant is being sentenced, whether the defendant has accepted responsibility for his or her conduct, and how the sentencing guidelines apply. The report also contains some background information about the defendant that the court may consider in deciding what sentence to impose, including prior criminal history, educational background, work history, family background, and health. Many attorneys seem to forget, however, that sentencing is only one purpose of the PSR. January/February 2021 • THE FEDERAL LAWYER • 43

The BOP initially relies on the PSR to determine a defendant’s security classification and whether to house the inmate in a high-security U.S. penitentiary (USP), a medium or low-security federal correctional institution (FCI), or a minimum-security prison camp. The BOP also determines whether a defendant has medical or mental health needs that affect placement. Continuity of care in the BOP, to the extent it will happen, depends on an accurate PSR. The PSR acts as a “medical referral” for the client based on his or her medical and mental healthcare history, current medications, and security requirements. The PSR needs to be as complete as possible to reduce unnecessary lapses in care. Finally, the PSR can provide information about a defendant’s educational, vocational, and avocational interests, which can facilitate placement in a facility with appropriate programs to enhance rehabilitation and successful return to society. By knowing what programs and treatment the BOP provides, an attorney can better assist the client in making sure the PSR has appropriate documentation to improve the chances of a client’s placement in the most appropriate location.

Healthcare in the Federal BOP A defendant has a constitutional right to adequate health care. This means that prisons must provide necessary medical attention and may not act with deliberate indifference to a prisoner’s pain and suffering.3 The BOP attempts to meet its constitutional obligation efficiently and cost-effectively by having inmates placed at different facilities based on the level of medical care needed. All BOP facilities have staff members who are trained as first responders to use the automatic external defibrillator and to perform cardiopulmonary resuscitation in emergency situations.4 When an inmate first enters the BOP system, the Designation and Sentence Computation Center enters the defendant’s information, including criminal history, offense and sentence, and medical documents and treatment history from the PSR into their SENTRY software to determine both security classification and medical care level designation for that inmate. Designations range from CARE LEVEL I for the healthiest inmates to CARE LEVEL IV for gravely ailing inmate-patients needing inpatient care. An institution designation is then determined, based on appropriate medical care level and security classification level. Final placement decisions for those inmates with significant health concerns/conditions are made by the Office of Medical Designation and Transportation at the BOP.

facilities provide medical care for the same types of conditions as would a fully staffed internal medicine practice. Inmates designated Care Level II may have some chronic illnesses or require regular medication, but their health is generally stable, and hospitalizations are not usually required. Inmates at this level may have a mental health diagnosis requiring routine outpatient care, but all mental health concerns are controlled with medication or talk therapy. Medical or psychological patient care visits may be available monthly to quarterly. The Care Level II facilities are within one hour of a regional hospital center, but the need for hospitalization for such an inmate would not be expected more than once every two years. See Table 2 for BOP Care Level II facilities, grouped by security classification. Care Level III facilities are located near a major community medical facility to ensure outside necessary medical care is within close proximity to the designated institution. Care Level III inmates include those needing “companions” to help with their activities of daily living (but not needing daily nursing supervision) and those needing daily to monthly medical or psychiatric visits. Other Care Level III inmates include those suffering from cancer in remission less than one year, advanced HIV, severe mental illness in remission on medication, congestive heart failure, and end-stage liver disease. These inmates may have chronic or recurrent mental illnesses or ongoing cognitive impairments. Daily inpatient nursing care is not available, but inmates at this care level may require hospitalization periodically to stabilize their medical or mental health conditions enough to keep them from deteriorating to the point of requiring around-the-clock nursing care. See Table 3 for BOP Care Level III facilities, grouped by security classification. Care Level IV facilities are known as Medical Centers For Federal Prisoners (MCFP) or Federal Medical Centers (FMC). They operate like small hospitals and provide varying degrees of nursing and medical care, including surgical, diagnostic, and therapeutic services. They are the only BOP facilities able to provide Care Level IV inmates with the around-the-clock nursing care needed for acute

Table 1 Care Level I Facilities by Security Classification Facility

State

Security Classification

USP Atwater

High/Camp

USP Big Sandy

High/Camp

USP Lee

High/Camp

Care Levels in the BOP

USP Pollock

High/Camp

Care Level I is comparable to the care provided by a general practice physician that one rarely visits for the occasional minor illness or injury. This classification level is for inmates who are less than 70 years old and healthy, with limited medical needs. They have stable mental and physical health and typically need physicians no more than once every six months. Any mental health crisis would be of short duration and would not require hospitalization. Examples of “limited” medical needs assigned to Care Level I include mild asthma, diet-controlled diabetes, and stable HIV for which medications are not needed. A community hospital is usually approximately one hour away from Care Level I institutions. See Table 1 for BOP Care Level I facilities, grouped by security classification. Most federal prison facilities are designated Care Level II because this is the level of care needed by the majority of people. These

FCC Yazoo City

High/Medium/Low

44 • THE FEDERAL LAWYER • January/February 2021

FCI Bennettsville

Medium/Camp

FCI Herlong

Medium/Camp

FCI Manchester

Medium/Camp

FCI McKean

Medium/Camp

FCI Oxford

Medium/Camp

FCI Three Rivers

Medium/Camp

FCI Williamsburg

Medium/Camp

FCI Safford

Low

FCI Sandstone

Low

FPC Yankton

Low

Table 2 Care Level II Facilities by Security Classification Facility

State Security Classification

Notes

USP Atlanta

High/Camp

FCI Pekin

Medium/Camp

FCC Beaumont

High/Medium/Low/Camp

FCC Petersburg

Medium/Low/Camp

USP Canaan

High/Camp

FCI Phoenix

Medium/Camp

FCC Coleman

High/Medium/Low/Camp

FCI Ray Brook

Medium

USP Florence

ADMAX/high

FCI Schuylkill

Medium/Camp

USP Hazelton

High/Camp

FCI Sheridan

Medium/Camp

USP Lewisburg

High/Camp

FCI Talladega

Medium/Camp

USP McCreary

High/Camp

FCI Aliceville

Low/Camp

FCC Victorville

Max. security

FCI Otisville

Medium/Camp Male and female Male and female

Female only

High/Medium

FCI Ashland

Low/Camp

USP Leavenworth KS

Medium/Camp

FCI Bastrop

Low/Camp

USP Marion

Medium/Camp

FCI Big Spring

Low/Camp

FCI Beckley

Medium/Camp

FCI Danbury

Low/Camp

Male and female

FCI Bennettsville

Medium/Camp

FCI Dublin

Low/Camp

Female only

FCI Berlin

Medium/Camp

FCI Elkton

Low

FCI Cumberland

Medium/Camp

FCI Englewood

Low/Camp

FCI Edgefield

Medium/Camp

FCI Ft. Dix

Low/Camp

FCI El Reno

Medium/Camp

FCI La Tuna

Low/Camp

FCI Estill

Medium/Camp

FCI Loretto

Low/Camp

FCI Fairton

Medium/Camp

FCI Miami

Low/Camp

FCC Forest City

Medium/Low/Camp

FCI Milan

Low

FCI Gilmer

Medium/Camp

FCC Oakdale

Low/Camp

FCI Greenville

Medium/Camp

FCI Seagoville

Low/Camp

FCI Hazelton

Medium

Male and female

FCI Tallahassee

Low

FCI Jesup

Medium/Low/Camp

Male and female

FCI Texarkana

Low/Camp

FCC Lompoc

Medium/Low/Camp

FCI Waseca

Low

Female only

FCI Manchester

Medium/Camp

FPC Alderson

Camp

Female only

FCI Marianna

Medium/Camp

FPC Bryan

Camp

Female only

FCI McDowell

Medium/Camp

FPC Duluth

Camp

FCI Memphis

Medium/Camp

FPC Montgomery

Camp

FCI Mendota

Medium/Camp

FPC Pensacola

Camp

Male and female

Table 3 Care Level III Facilities by Security Classification Facility

State

Security Classification

USP Allenwood

High

USP Tucson

High/Camp

FCC Allenwood

High/Medium/Low

FCC Terre Haute

High/Medium/Camp

FCI Tucson

Medium

FCI Terminal Island

Low

Notes

Male and female

medical or chronic mental health conditions resulting in severe physical and cognitive impairments. Physical ailments designated to this level include end-stage kidney failure (requiring dialysis), unremitted cancer, quadriplegia, stroke, debilitating neurological trauma, major surgery, or high-risk pregnancy and recent transplant recipients

Male and female

(within one year). Mental health diagnoses so severe that an inmate cannot function in the general population may be designated to a mental health unit within one of the prison medical facilities. Care Level IV facilities accommodate inmates of every security level, which makes the safety of a nonviolent offender an issue to be raised. See Table 4 for more detailed information about the BOP Care Level IV facilities.

Scope of Services Covered Federal prison healthcare is implemented through a mix of BOP employees and public health service officers. Primary responsibilities fall on the primary care provider team, which provides medical care to inmate-patients under a medical or clinical director’s supervision.5 This is the BOP’s equivalent of a staffed medical practice. Working under staff physicians (and psychiatrists at selected facilities), mid-level practitioners include registered nurses, licensed practical nurses, licensed vocational nurses, nurse practitioners, January/February 2021 • THE FEDERAL LAWYER • 45

Table 4 Care Level IV Facilities Facility

State

Notes

FMC Butner

Adjacent Medium and Low facilities; Provides inpatient mental health, cancer treatment, and dialysis

Female only Has adjacent Camp Provides all mental health and medical specialties

FMC Devens

Has adjacent Camp Provides inpatient mental health, dialysis, and sex offender treatment.

FMC Ft. Worth

New Level IV facility

FMC Lexington

Male and female inmates; has adjacent camp; all medical specialties

FMC Rochester

Provides inpatient mental health, treatment for complex disease; referral arrangement with Mayo Clinic

FMC Springfield

High security; provides dialysis and inpatient mental health care

FMC Carswell

physician assistants, and certified nursing assistants. These staffers are in turn supported by general laboratory technicians, like X-ray technicians and phlebotomists, as well as not-yet-licensed foreign medical school graduates. EMTs also act as mid-level practitioners. Additionally, all facilities have a dentist and may have contracts with orthopedics, neurologists, optometrists, and other specialists from the local community who come to the prison for onsite medical visits. Mid-level practitioners are the inmate-patient’s primary point of contact. They serve as the primary care provider for routine requests, new complaint evaluations, ongoing management of recurring conditions, and emergencies. The BOP sorts medical treatment into five categories, which can objectively be called: Life-Threatening, Medically Necessary, Medically Necessary but Not Urgent, Medically Appropriate but Not Necessary, and Extraordinary.6 1. Life-Threatening Conditions Treatment for life-threatening conditions is essential to sustain life or function of a critical bodily system and requires immediate attention. The BOP refers to these conditions as “Medically Necessary–Acute or Emergent” and includes the following conditions in this category: heart attacks, severe trauma such as head injury, hemorrhage, stroke, detached retina, sudden vision loss, and complications of pregnancy or labor.7 2. Medically Necessary Conditions The BOP defines this category to include conditions that are not immediately life-threatening but which without treatment now, the inmate could not be maintained without significant risk of: • Serious deterioration leading to premature death. • Significant reduction in the possibility of repair later without present treatment. • Significant pain or discomfort that impairs the inmate’s participation in activities of daily living.8 46 • THE FEDERAL LAWYER • January/February 2021

Examples of conditions the BOP includes here are chronic conditions such as high blood pressure, high cholesterol, heart disease, and diabetes; severe mental health issues (e.g., bipolar disorder, schizophrenia); infectious disorders (e.g., HIV, tuberculosis); and cancer.9 3. Medically Necessary but Not Urgent The BOP actually defines this category as “Medically Acceptable— Not Always Necessary.”10 The group includes conditions for which “treatment may improve the inmate’s quality of life.”11 Examples of treatments for conditions in this category, as listed in the BOP Policy on Patient Care, include joint replacements, reconstruction of the anterior cruciate ligament (ACL) in the knee, and treatment of noncancerous skin conditions.12 Such treatment procedures require review and approval by the institution’s Utilization Review Committee, which considers various factors, including risks and benefits of the treatment, available resources (including cost of security staffing and transportation), the inmate-patient’s medical history, and how intervention (or lack thereof ) will impact the inmate’s activities of daily living.13 Should an outside specialist consult be needed for a nonemergent condition, a referral request is made to the prison’s Utilization Review Committee and clinical director. Other members involved in this decision-making process include the associate warden or warden, health service administrator or assistant, the medical trip coordinator, any health care providers directly involved in the referral, and perhaps the director of nursing and the chaplain or a social worker.14 The clinical director has final say over all Utilization Review Committee decisions.15 If approved, the inmate-patient will be placed on a schedule or waitlisted until the specialist has an opening during the contract’s limited monthly hours, which may be several months or years later. Notably, the clinical director is under no obligation to follow medical recommendations made by the outside physician consultant specialist. If the recommendations are not followed, the clinical director will document his/her justification in the inmate health record.16 Justification may be based on the category of care sought. 4. Medically Appropriate Some treatments, even though recommended by a health care provider and deemed appropriate by the clinical director, still require approval by the Utilization Review Committee, which is not likely to be granted. These treatments are considered by the BOP to have “limited medical value” and include cosmetic procedures and removal of noncancerous skin lesions.17 It is worth noting that some skin lesions may be misdiagnosed, so the denial of treatment for these appropriate medical procedures is a concern for inmates with such health needs. 5. Extraordinary Treatments The BOP considers a medical treatment extraordinary if it “affect[s] the life of another individual, such as organ transplantation.”18 Thus, organ transplants and experimental/investigational treatments require approval of the Utilization Review Committee, which is not likely to be granted. Medical Devices and Pharmaceuticals If an incarcerated inmate needs medical devices, glasses, prosthetics, or other medical support items, these can be mailed directly from his or her personal physician’s office or a medical business (e.g., Pearl Vi-

sion) with the attached physician orders and using form BP-AO331.19 These items cannot be mailed by family members, friends, or other nonmedical civilians. Prescription eyeglasses, medical devices (such as CPAP or BiPAP or other machines for sleep apnea), prosthetics, and similar devices should also be brought with the patient, along with doctors’ prescriptions and orders. The PSR should also mention that the defendant has these devices pursuant to medical orders. If the client does not take these devices with him or her when reporting, he or she may have to wait several weeks for the BOP to obtain appropriate medical devices; the inmate’s family will not be allowed to mail/send the items to the facility, as they must come directly from a medical company or health care provider. If the inmate regularly takes prescribed medication, the BOP will usually substitute generic medications for brand-named drugs. Not only does BOP policy generally require generic medications, but BOP medical personnel, pharmacists, and consulting physicians are required to use “the least expensive generic equivalent … when available.”20 Thus, instead of generic equivalents, the BOP may prescribe an alternative (but less expensive) generic medication that is for treatment of the same medical condition. Much like insurance companies, the BOP has a formulary of approved medications.21 The formulary includes the generic name of the medication, what conditions it may be prescribed for, acceptable dose levels, and limits on the number of days the medication can be prescribed.22 Use of any medication that is not on the formulary or use of a medication in a different manner, for treatment of a different condition than authorized by the formulary, or longer than authorized, requires pre-approval from the BOP medical director, after going through the institution’s clinical director and the BOP regional medical director—an extensive and lengthy process.23 Some nonformulary drugs are available only in limited circumstances, such as the preferred medication’s failure to work for the patient, but only after the lengthy pre-approval process. Some medications, such as opiate narcotics, are only available in Care Level IV facilities for very limited circumstances; those medications and psychiatric medications must be crushed by the health care provider and administered to the patient in the provider’s presence.24 This is to prevent diversion of the medication by inmates for unlawful purposes. Prescribing a medication without pre-approval is considered unauthorized use of government funds, a felony offense.25 In short, medications the patient-inmate receives in custody will not necessarily match the medications that the inmate received before incarceration. Even if the inmate is lucky enough to be taking the same medications as before, a variety of manufacturers will provide the same generic drug in different colors, sizes, and shapes than the inmate may have been used to. To avoid unnecessary anxiety and surprise to the client, an attorney should educate his or her client about these BOP policies. If a client is on nonformulary medication, the attorney needs to assist the client in obtaining pre-approval before arrival at the facility, which takes substantial time, in order to prevent unnecessary and potentially harmful interruption of the client’s medical treatment. If a client is self-surrendering to the BOP, he or she should bring along a three to four-week supply of his or her medication in original, properly labeled bottles. These prescriptions may ultimately be returned to the client’s home, but at least they will be available if needed for continuity of care purposes, in case the institution does not have the correct medication in stock.

Programming in the Federal BOP In the last century, American society transitioned from institutionalizing people with mental health conditions in mental health facilities (often underfunded and operating under poor conditions) to incarcerating the mentally ill in jails and prisons.26 Nearly 50 percent of jail inmates and over one-third of prison inmates suffer from mental health problems.27 Mental illness often underlies behavioral problems, and if an incarcerated inmate has not been properly diagnosed or given treatment for a mental illness, chances are high that the inmate will be involved in fights, assaults, self-injurious behavior, or other misconduct in prison that leads to disciplinary consequences, including restrictive housing units;28 use of restrictive housing units, especially solitary confinement, exacerbates mental illness rather than helping the inmate.29 Therefore, it is imperative that the defense attorney makes sure that psychiatric and psychological issues are identified and included in the defendant’s presentence report, along with the appropriate treatment plan recommended by a qualified psychiatric health provider. If mental health issues are apparent, but the defendant has no documentation of diagnosis or treatment, the attorney should obtain a professional psychological evaluation before the probation officer begins preparing the PSR. Failure to do so will consign the defendant to increased risk of restrictive housing or solitary confinement. When requesting placement in a specific facility or program, defense counsel should ask the court not only to recommend the placement but to include the reasons for his recommendation, which will improve the chances of securing the placement. One additional measure to possibly increase the chance of the BOP following the recommendation of the court, is to ask the sentencing judge to order the BOP to provide in writing, the reason for not following the judicial recommendation. Documentation of known mental health issues and treatment (including substance abuse and addiction) is essential for continuity of care. Without documentation of the diagnosis and need for specific medication in the PSR, for example, an inmate entering the BOP will have no access to medication. In that case, there will be a waiting period, sometimes several weeks, before the inmate will be seen and evaluated and prescribed a medication deemed suitable by the prison medical establishment. During the delay without any medication, the inmate’s condition is likely to deteriorate. In addition, when providing the substance abuse history, it is imperative that the PSR document frequency and current substance use activity. Upon initial remand or voluntary surrender to the assigned prison, the defendant may require placement in an institution that is equipped to provide a safe detox environment. If the BOP is unaware—from documented medical records in the PSR—that some medications have been unsuccessful, the patient-inmate may be doomed to another trial period of medication already known to be ineffective for him. Beyond access to basic mental health care and medication, documentation of known mental health and related conditions is necessary for inmates to be eligible to participate in some programs. The BOP offers a variety of programs to provide mental health support, substance abuse education and treatment, continuing education, and vocational training. Other programs help inmates adjust to prison life, develop coping skills, or heal from past trauma that may have played a contributing role in an inmate’s criminal conduct. However, some of the programs have very limited capacity and are offered only at certain facilities. If a defendant’s need and desire for a particular program are made clear in the PSR, his or her chances January/February 2021 • THE FEDERAL LAWYER • 47

for placement at a facility offering the program will be improved. Addressing program needs with the assigned assistant U.S. attorney before sentencing and obtaining the government’s agreement to recommend the placement will also improve the defendant’s chances. These programs are discussed in this section.

Programs Promoting Psychological Well-Being 1. The Mental Health Treatment Programs The BOP has a series of residential Mental Health Treatment Programs to treat inmates diagnosed with serious mental illness and behavior disorders, particularly for inmates who do not require hospitalization but nonetheless need intensive treatment services and/ or lack the ability to function in a general population setting. These programs include the Habilitation Program, the Skills Program, the Axis II Program, and Mental Health Step-Down units.30 The Habilitation Program is for high security inmates who lack the ability to adapt to the penitentiary environment because of mental illness, but who may be able to function in a medium-security environment with proper residential treatment.31 The Skills Program is for inmates with both mental illness and cognitive/intellectual limitations that limit their ability to adapt to living in the community and in prison.32 The program is currently available at FCI Danbury (Low) and FCI Coleman (Medium). The Skills Program has evolved into a residential program that now has an emphasis on addressing the needs of offenders who are determined to be on the Autism Spectrum. This 12-18 month program assists in providing inmates on the autism spectrum with coping mechanisms and tools to be able to manage better once released from the program and assigned to general population. The Axis II Program is for inmates with borderline personality disorder or other severe personality disorders who have a history of behavioral problems in the prison, but who are amenable to treatment.33 More recently, this program has been called STAGES (Steps Toward Awareness, Growth, and Emotional Strength). The program is designed to increase time between disruptive behaviors, foster living within the general population or community setting, and increase pro-social skills. The Stages Program is available at FMC Rochester, USP Florence, and FCI Terre Haute.34 Mental Health Step-Down Units provide intensive treatment for inmates recently released from in-patient psychiatric hospitalization. Sometimes, inmates are placed in these units in an effort to avoid the need for in-patient hospitalization.35 Acceptance into any of the Mental Health Treatment Programs requires a diagnosis of mental illness or behavior disorder and a demonstrated need for intensive treatment (demonstrated by prior psychiatric hospitalizations/interventions, complex treatment with psychotropic medication, major functional impairment, or repeated incidents of severe behavioral problems in prison). Inmates in a residential treatment program reside together on a unit, with their living areas being separate from the general population, allowing the inmates to create a therapeutic community environment. Most of their other activities, recreation, work assignment, and meals are shared with the general population inmates assigned to that particular facility. This placement also helps to protect mentally ill inmates from injuring themselves, from being victimized, and from being negatively influenced by peers in the general population. Inmates in these residential programs are still subject to being victimized; however, the potential for victimization is reduced. Unfortunately, the 48 • THE FEDERAL LAWYER • January/February 2021

BOP has very limited capacity and lengthy waiting lists for placing inmates in one of these programs. With such limited capacity, the need for thorough documentation of prior mental health history in the PSR is readily imperative. Without documented need for special placement, an inmate will be placed in the general population, with greatly increased chances of restrictive housing, isolation, and other counter-productive sanctions rather than treatment. 2. The Resolve Program The Resolve Program is a cognitive-behavioral program designed to address trauma-related mental health needs of inmates. Specifically, the program works with those who have previously been victims of child abuse or neglect, sexual assault, domestic violence, or other trauma known to correlate with psychological disorders. Starting with an eight-hour workshop, the program is followed by six months of nonresidential treatment and seeks to decrease the incidence of trauma-related pathology and improve inmates’ level of functioning.36 Since 2007, the Resolve Program has been implemented at all BOP facilities housing women (except during times that the institution lacks a psychologist to lead the program).37 The program is available for men at the maximum security prison in Florence, Colo., and at FCI Danbury (Low) in Connecticut.38 3. The Challenge Program The Challenge Program is a residential cognitive-behavioral treatment program developed for male inmates in penitentiary settings. The Challenge Program, which lasts at least nine months, provides three phases of treatment to high-security inmates with substance abuse problems and/or mental illness. Like the Mental Health Treatment Programs, participants live together on a unit separate from the general population. Incentives and rewards are available for successful completion of phases and of the program.39 The program is available at several BOP facilities, but not at all of them.

Substance Abuse Programs The BOP offers several different options for those inmates dealing with substance abuse issues, ranging from education to intensive treatment.40 1. Drug Abuse Education Drug abuse education includes a series of classes providing education about substance abuse and its unwanted side effects. The classes may help identify offenders who need more than education.41 Any inmate is eligible to participate in drug abuse education classes, as long as he or she is not already enrolled in or has not already completed the residential drug abuse treatment program and has enough time remaining in custody to complete the course. The course is available at all BOP institutions. 2. Nonresidential Drug Abuse Treatment Nonresidential drug abuse treatment is a 12-week cognitive-behavioral therapy treatment program, usually conducted in group-therapy sessions. The program addresses the link between substance abuse and criminal lifestyles and provides opportunities for building and improving skills in rational thinking, communication, and community adjustment. The program is intended for inmates with relatively short sentences, those transitioning to the community, those who have failed a urinalysis drug screen, and for addicts in need of substantial

treatment who are on the waiting list for the RDAP intensive treatment program or who are not eligible for RDAP.42 All BOP institutions have this program, which is open to any inmate who volunteers.43 3. Residential Drug Abuse Program (RDAP) RDAP is an intensive residential treatment program, followed by transitional treatment in the community following release. Inmates in the program live in a prison housing unit separate from the general population in a modified therapeutic community setting. They spend half of each weekday in treatment, including individual and group counseling, and the other half of each day is spent in school, work, or vocational training.44 This portion of RDAP must last at least six months.45 The usual length of time of the residential portion of the treatment is approximately 10 months. To be eligible for RDAP, the inmate must have a verifiable substance use disorder that was active within one year of the offense for which he or she is incarcerated.46 This means for eligibility, the offender must have been actively using substances within one year from the date of the arrest. For this reason, it is critical for the PSR to document active substance abuse and any prior efforts at treatment. Details of where and when treatment in the community was obtained should also be documented in the PSR for easy reference. A defendant who denies having a substance abuse problem during his or her presentence interview will have a much harder time establishing eligibility for the program later. An inmate must also sign an agreement to comply with program responsibilities and requirements; finally, an inmate must have sufficient remaining time on his or her sentence to complete the full program or admission to the program will be denied.47 The RDAP program is widely sought because studies have demonstrated its effectiveness in preventing relapse to drug use and in reducing criminal recidivism.48 The program is also popular because eligible inmates who successfully complete the program can reduce the length of their prison sentences by 10 percent, up to a maximum of one year.49 Because of the program’s popularity, there is a waiting list to get into RDAP, and not all who need the program can get it. There are also eligibility requirements for early release, such that not every participant in the program will receive the benefit of early release under 18 U.S.C. § 3621 (e). Those ineligible for early release include illegal aliens; pretrial detainees; military inmates or state inmates serving time in a BOP facility; inmates who previously completed the program and got an early release the first time; inmates currently serving a sentence for any violent felony, sex offense involving a minor, or any attempt, solicitation, or conspiracy to commit such violent felony or sex offense; and inmates with a detainer and inmates with a previous conviction (within 10 years of the sentence on current offense) for homicide, rape, robbery, aggravated assault, arson, kidnapping, or sexual abuse of a minor.50

outpatient groups meeting two to three times per week for a total of six to eight hours per week. Completion of this moderate intensity program takes at least nine months. Participants learn basic skills and concepts to help them understand their past offenses and to reduce risk of future offending. Eligibility for this program is limited to offenders who have been evaluated and found to have low to moderate risk of re-offending. Attorneys should advise clients that the BOP uses this program to identify persons likely to re-offend, and therefore, participation carries risks. However, failure to participate, if recommended by the BOP, can result in loss of good-time credit. The nonresidential sex offender treatment program is available at FCI Elkton, FCI Englewood, FCI Marianna, FCI Petersburg, FCI Seagoville, USP Marion, and USP Tucson for male offenders and at FMC Carswell for female offenders.51 2. Residential Sex Offender Treatment Program The residential sex offender treatment program involves high-intensity programming for a period of 12 to 18 months. The BOP provides this program at FMC Devens in Massachusetts. Participants benefit from a therapeutic community on a residential housing unit where they work to reduce their risk of future offending. Offenders receive treatment five days per week. The program is targeted to offenders with an elevated risk of re-offending.52 3. New Butner Program Butner recently added a new program—the Commitment and Treatment Program (CTP) for Sexually Dangerous Persons—in lieu of the residential sex offender treatment program. Little information is available about this program due to its recency. 4. Involuntary Civil Commitment Inmates who have served their sentences but are deemed at high risk of re-offending because of severe mental illness can be involuntarily committed to the custody of the attorney general for continued confinement and treatment.53 Some defense attorneys may advise their clients not to participate in sex offender treatment programs because information disclosed in treatment has sometimes been the basis for seeking an order of civil commitment.54

Policies and Programs for Pregnant Inmates

The BOP offers sex offender treatment programs for inmates serving criminal sentences and for those who have been civilly committed as predatory sex offenders suffering from mental illness that renders them dangerous to the community.

Female inmates are medically screened for pregnancy upon admission to the BOP, and they are instructed to inform medical staff immediately if they suspect they are pregnant.55 The BOP provides female inmates with medical and social services related to pregnancy, birth control, and child placement, as well as access to abortion. If necessary, childbirth takes place at a hospital outside the institution.56 Previously, an inmate could be handcuffed during delivery, but a provision of the First Step Act now prohibits such use of restraints except in limited circumstances.57 Outside social service agencies are contacted to help the inmate find an appropriate placement for the baby. Newborns are not allowed to return to the prison with their mothers, but they can accompany an adult visitor to the prison for visitation, in accord with the prison’s visitation policies. Attorneys representing a client who is pregnant or has a young child need to be aware of two special situations in the BOP, discussed below.

1. Nonresidential Sex Offender Treatment Program The nonresidential sex offender treatment program consists of

Abortion Federal law popularly known as the “Hyde Amendment” prohibits

Sex Offender Programs

January/February 2021 • THE FEDERAL LAWYER • 49

use of federal funds to perform or facilitate abortions except where the mother’s life is endangered or in cases of rape or incest.58 This law applies to and is followed by the BOP.59 Pursuant to 28 C.F.R. § 551.23, a pregnant inmate receives medical, religious, and social counseling about her pregnancy decision. If she decides to have an abortion, arrangements are made for these medical services to be provided at an appropriate clinic outside the institution, at the inmate’s expense (or her family’s). Even though not paying for the abortion procedure, the BOP may pay to escort the inmate to the procedure. Under BOP policy, BOP employees may decline to participate in the provision of abortion counseling or services, including transportation.60 The MINT Program MINT (Mothers and Infants Nurturing Together) is an alternative residential program for low-risk female inmates who are pregnant when they arrive in prison. Eligible female inmates can enter the program two months before their delivery due date, and they can remain in the program for three months after the baby is born.61 The program’s purpose is to promote parent-child bonding and to improve parenting skills for the new mother. The program is administered through the Community Corrections Centers (CCC) and Residential Re-entry Centers (RRC), and the inmate must qualify to participate. A woman with more than five years to serve, who gets pregnant while incarcerated, or who plans to place the child for adoption is not eligible for the program, nor are sex offenders; deportable non-citizens, those with pending charges or a history of violence, or those requiring psychiatric hospitalization.62 Another requirement is that the mother be able to provide financial support for herself and her child (so that the BOP does not have to pay), but she may seek help from Social Services.63 Prior to the child’s birth, the mother must make custodial arrangements for the child, because after the three-month bonding period, she must return to her original prison to finish her sentence.64 The CCC or RRC provides psychological counseling, drug counseling, and parenting classes. One facility differs from the other federal MINT programs: Greenbrier Birthing Center, overseen by the Baltimore Residential Reentry Office, operates under a contract with the BOP. A female may remain at Greenbrier up to 12 months with her child after birth. Located in Hillsboro, W. Va., the program seeks to provide a “home-like environment” to promote bonding and parenting skills. The facility has 20 private bedrooms, with every two rooms sharing a bathroom. The common area has a kitchen, recreation room, education room, physical training area, laundry facilities, and a phone room. Greenbrier also offers more programming than the minimum required by the BOP; in addition to parenting classes, psychological counseling, and substance abuse counseling and weekly screening, Greenbrier provides life skills classes, financial management, job readiness, and GED classes and testing onsite, all of which are intended to motivate and help the mother provide a stable environment for the child upon her release from custody.65 BRAVE Program The BRAVE Program (Bureau Rehabilitation and Values Enhancement) is for young male offenders serving their first federal sentence. To qualify for the program, an inmate must be 32 years of age or younger, with a sentence of five years or longer, and federally incarcerated for the first time. The program utilizes a cognitive-behavioral 50 • THE FEDERAL LAWYER • January/February 2021

approach to promote favorable institutional adjustment, positive interaction with staff members, and self-improvement activities. During the six-month residential program, inmates live together in a unit, completing an Orientation Phase, Core Treatment Phase, and Transition Phase.66 The BRAVE Program is offered at FCI Beckley and FCI Victorville-medium. Educational Programs An adult literacy program leading to the completion of a GED is available in each BOP institution. Inmates without a verified high school diploma or GED certificate who have the capacity to obtain one are expected to work towards completion of this program while incarcerated.67 The Warden at each facility is also to ensure the availability of an English as a Second Language program for non-English-speaking inmates who score below eighth grade proficiency in reading and listening comprehension in English.68 The BOP Program Statement on Education notes the goal of providing postsecondary educational opportunities and adult continuing education classes for inmates.69 Individual classes in typing, computer literacy, and parenting skills are available as continuing education courses, but the reality is that reduced funding and prisoner ineligibility for Pell grants has limited the availability of postsecondary education for many inmates. Some BOP facilities have access to community college programs in which professors come to the facility to teach classes, and some have correspondence school options available to inmates. The attorney for a defendant who hopes to obtain some collegiate education should check the handbook for facilities where the client is likely to be placed to determine what advanced programs, if any, are available at the institutions. Vocational Programs The BOP endeavors to provide vocational education opportunities for inmates with limited employment history and few marketable skills. Vocational training is available in the form of apprenticeship programs, certificate programs, and on-the-job training in various fields.70 Popular apprenticeship programs include HVAC, electrical, and welding. The same programs are not available at every facility, however, and an attorney should determine which facilities offer a program that the client wishes to learn.

Conclusion A defendant’s legal team must determine what medical and nonmedical information needs to be included (or not included) in the client’s presentence report. The goal is to request the client’s placement in a facility appropriate to his or her security classification, but also taking into consideration the individual medical, psychological, and educational/programming needs of the defendant. Accuracy and documentation of information from the beginning of representation is key to accomplishing this goal. Further, it is advisable for the legal team to call the classification center in Grand Prairie or to speak with staff at specific facilities to verify that desired programs are still available at that facility. Individual facilities sometimes “supplement” BOP practices based on local needs and resources, without public notification. Particularly if the defendant may be placed in a private contract facility, the attorney needs to learn about the programs, medical resources, and mental health care available at that facility and the requirements for eligibility. Most low-security non-U.S. citizen inmates are placed in one of the BOP’s contract for-profit

prisons. Only by knowing the client’s needs and obtaining the appropriate documentation for the presentence report can the attorney give a defendant the best shot at receiving appropriate treatment and programming while incarcerated. 

Dr. Marc Blatstein (info@pprsus.com) had a successful podiatric medical practice for 30 years providing quality patient care. In 2006, he was convicted of felony mail fraud and served one year and one day in prison for the actions of his office billing department’s use of incorrect billing codes. He maintains an active medical license and is the founder of Physician Presentence Report Service, LLC. Fay F. Spence is an attorney with more than 30 years of experience in criminal law. She currently serves as a pro se law clerk for the U.S. District Court for the Western District of Virginia. E.J. “Jay” Hurst II (jayhurst@jayhurst.net) has worked with BOP inmates and federal defendants since 2001. Besides criminal defense and post-conviction law, Hurst pursues federal government records under the Freedom of Information Act and will periodically go to court on civil rights matters. Maureen Baird (moiep@aol.com) served as warden at the Federal Correctional Institution in Danbury, Conn., and at the Metropolitan Correctional Center in New York City. While there, she was appointed to senior executive staff by the U.S. Attorney General. She then became warden of the U.S. Penitentiary in Marion, Ill.

Endnotes Estelle v. Gamble, 429 U.S. 97, 103 (1976). U.S. Dep’t of Just., Criminal Resource Manual § 734 (Mar. 2012), https://www.justice.gov/jm/criminal-resource-manual-734processing-prisoner-transfer-requests. 3 Estelle, 429 U.S. at 104. 4 Fed. Bureau of Prisons, Patient Care 9 ( June 13, 2014), www. bop.gov/policy/progstat/6031_004.pdf. 5 Id. at 13-14. 6 Id. at 5-7. 7 Id. at 5. 8 Id. at 6. 9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. at 7-8. 15 Id. at 8. 16 Id. 17 Id. at 6-7. 18 Id. at 8. 19 Fed. Bureau of Prisons, Form BP-A0331, Authorization to Receive Package or Property ( June 2010), https://www.bop. gov/PublicInfo/execute/forms?todo=query. 20 Fed. Bureau of Prisons Health Servs., National Formulary, Part I 6 (May 16, 2019), https://www.bop.gov/ resources/pdfs/2019_winter_national_formulary_part_I.pdf. 21 A list of the approved medications on the BOP Formulary, including the generic equivalents for commonly used brand-name 1 2

prescriptions, is available on the BOP website at https://www.bop. gov/resources/pdfs/2019_winter_ national_formulary-part_II.pdf. 22 Id. 23 Fed. Bureau of Prisons Health Servs., supra note 20, at 4-6. 24 Id. at 12-32. 25 Id. at 2. 26 Mental Health Am., Position Statement 56: Mental Health Treatment in Correctional Facilities (Mar. 7, 2015), https://www.mhanational.org/issues/position-statement-56-mentalhealth-treatment-correctional-facilities#:~:text=Position%20 Statement%2056%3A%20Mental%20Health,Correctional%20Facilities%20%7C%20Mental%20Health%20America&text=Mental%20 Health%20America%20understands%20that,in%20all%20that%20 we%20do. 27 Allen J. Beck, Use of Restrictive Housing in U.S. Prisons and Jails, 2011-12 6, Bureau of Justice Statistics (Oct. 2015), https:// www.bjs.gov/content/pub/pdf/urhuspj1112.pdf. 28 Id. 29 Id. 30 Fed. Bureau of Prisons, Psychology Treatment Programs 6-1 (Apr. 26, 2016), www.bop.gov/policy/progstat/5330.11.pdf. 31 Id.at 6-2. 32 Id. at 6-3. 33 Id. 34 Federal Correctional Complex, Doctoral Psychology Internship, 2018-2019 8, https://www.bop.gov/jobs/docs/ pex_internship_201709.pdf (last visited Jan. 17, 2021); Federal Medical Center, Pre-Doctoral Psychology Internship 2019-2020 5, https://www.bop.gov/jobs/docs/rch__internship_ brochure20200904.pdf (last visited Jan. 17, 2021). 35 Fed. Bureau of Prisons, supra note 30, at 6-3. 36 Id. at 3-1 through 3-5. 37 Fed. Bureau of Prisons, Directory of National Programs 18 (Sept. 13, 2017), https://www.bop.gov/inmates/custody_and_ care/docs20170914_BOP_National_Program_catalog.pdf. 38 Id. 39 Fed. Bureau of Prisons, supra note 30, at 5-1 through 5-7. 40 Fed. Bureau of Prisons, Substance Abuse Treatment, http:// bop.gov/inmates/ custody_and_care/substance_abuse_treatment. jsp (last visited Dec. 15, 2020). 41 Id.; 28 C.F.R. § 550.51. 42 Fed. Bureau of Prisons, supra note 40. 43 28 C.F.R. § 550.52. 44 Fed. Bureau of Prisons, supra note 40. 45 28 C.F.R. § 550.53(a)(1). 46 28 C.F.R. § 550.53(b). 47 Id. 48 Fed. Bureau of Prisons, supra note 40. 49 28 C.F.R. § 550.55. 50 Id. 51 U.S. Dep’t of Just., Legal Resource Guide to the Federal Bureau of Prisons 29-30 (2019), https://www.bop.gov/ resources/pdfs/legal_guide_march_2019.pdf. 52 Id. at 30. 53 18 U.S.C. § 4248. 54 John Rhodes & Daniel Donovan, Branded for Life by the Modern Scarlet Letters: Do Convicted Sex Offenders Have Rights While on Parole, Probation, or Supervised Release?, 38 The Champion 14, 17 January/February 2021 • THE FEDERAL LAWYER • 51

(2014). 55 U.S. Dep’t of Just., supra note 51, at 23. 56 Id. 57 18 U.S.C. § 4322. Exceptions to the prohibition on use of restraints include patients who pose an immediate and credible risk of flight that cannot be prevented by other means, patients who pose an immediate and serious threat of harm to themselves or others that cannot reasonably be prevented by other means, and patients for whom the treating healthcare provider determines that restraints are appropriate for the medical safety of the prisoner. 58 Departments of Health, Education, and Welfare Appropriation Act of 1977, Pub. L. 94-439, § 209, 90 Stat. 1418 (1977); see also H.R. Rep. No. 94-1555 (1976). 59 Fed. Bureau of Prisons, Birth Control, Pregnancy, Child Placement and Abortion 3 (Aug. 9, 1996), www.bop.gov/policy/ progstat/6070_005.pdf. 60 Id. at 4.

WRITE A BOOK REVIEW TO BE FEATURED IN THE FEDERAL LAWYER The Federal Lawyer encourages book review submissions. Writer’s guidelines are available online at www.fedbar.org/ TFLwritersguidelines. Email social@fedbar.org with book suggestions or questions regarding your submission today.

52 • THE FEDERAL LAWYER • January/February 2021

Fed. Bureau of Prisons, Community Corrections Center Utilization and Transfer Procedures 5 (Dec. 16, 1998), www. bop.gov/policy/progstat/7310_004.pdf. 62 Id. at 10-11. 63 Id. at 9; Lisa Barrett & Jamila T. Davis, How to Navigate through Federal Prison and Gain an Early Release (2015). 64 Barrett & Davis, supra note 63. 65 Id.; Zelma W. Henriques & Bridget P. Gladwin, Pregnancy and Motherhood Behind Bars, in Special Needs Offenders in Correctional Institutions (Lior Gideon ed., 2012). 66 Fed. Bureau of Prisons, supra note 30, at 4-1 through 4-3. 67 Fed. Bureau of Prisons, Education, Training and Leisure Time Program Standards 3-4 (Feb. 18, 2002), https://www.bop. gov/policy/progstat/5300_021.pdf. 68 Id. at 4. 69 Id. at 6. 70 Id. at 4-6. 61

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54 • THE FEDERAL LAWYER • January/February 2021

Demystifying the Civil Deposition JOHN R. BYRNE

n civil practice, most lawyers would agree that the deposition is the most important discovery tool. Unlike interrogatory responses (wordsmithed by your opposing counsel), requests for admission (same) and requests for production (the documents are what they are) depositions are living, breathing events that can dramatically alter the trajectory of a case. Depositions allow a lawyer to plumb the depths of his case, explore his theories, lock witnesses into factual positions, and, hopefully, get “soundbites” to leverage at summary judgment or trial.

Yet, despite their importance, much of what lawyers have learned about deposition practice is anecdotal “tips of the trade” passed down by more senior attorneys. In reality, many of these beliefs about deposition practice are wrong, running afoul of the plain text of the Federal Rules of Civil Procedure, case law, and even, in some instances, local district court rules. This article will discuss two commonly misunderstood aspects about deposition practice, specifically, (A) deposition objections and (B) witness conferences during depositions.

Common Areas of Confusion About Depositions Deposition Objections A common source of friction at any deposition is deposition objections. Your opposing counsel not only dislikes your objections but he or she doesn’t like the way you’re making them. Before taking or defending a deposition, then, it is helpful to review the rules and case law governing deposition objections.

What objections may I assert at a deposition? To start, what objections can a lawyer make at a deposition? Based on the Federal Rules of Civil Procedure and federal case law, one can divide the universe of potential deposition objections into three categories: (a) green light objections; (b) red light objections; and (c) yellow light objections. a. Green light objections The Federal Rules of Civil Procedure expressly allow a lawyer to assert certain objections.1 Indeed, according to the rules, if a lawyer does not assert certain objections during the deposition, he or she waives them (i.e., he or she cannot lodge the objection at any future trial or hearing).2 These objections are:

Proper Deposition Objections Type of Objection

Source

The form of a question or answer

Fed. R. Civ. P. 32(d)(3)(B)(i)

The manner of taking the deposition

Id.

The oath or affirmation

Id.

A party’s conduct

Id.

Privilege

Fed. R. Civ. P. 30(c)(2)

To enforce a limitation previously ordered by a court (e.g., a protective order)

Id.

To present a motion under Federal Rule of Civil Procedure 30(d)(3) to terminate or limit the deposition on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party

Id.

Of these seven objections, the first objection—an objection to “the form of a question or answer”—requires more commentary. Socalled “form” objections really refer to an entire category of more January/February 2021 • THE FEDERAL LAWYER • 55

specific objections. In short, when a lawyer objects to the form of a question, he or she is not objecting because the question seeks impermissible content. Rather, the lawyer is objecting to the manner in which the question was asked. Even among lawyers who like to argue about everything, there are certain objections that most would agree qualify as form objections. The chart below is illustrative:

Of course, Rule 32(d)(3) does allow a lawyer to object on these grounds in a limited circumstance: where “the ground for [the objection] might have been corrected at that time.”7 How such a limited circumstance might arise is clear in some cases and less clear in others. Take, for example, an objection as to the competence of the deponent. Suppose a lawyer asks the deponent to opine on whether a particular

Proper Deposition Objections: Form Objections Name of Objection

Description of Objection

Source

Leading

The nature of the question tends to suggest the answer (e.g., “The car ran the red light, correct?”)

Fed. R. Evid. 611(c)

Compound

The question contains more than one question and, as a result, the answer may be misunderstood (e.g., “Did the car run the red light and did it hit the blue car?”)

Fed. R. Evid. 611(a)

Foundation

Failure to lay appropriate predicate for testimony or exhibit (e.g., “When did you stop running red lights?” when the witness has not testified to having run any red lights)

Fed. R. Evid. 602

Ambiguous/Vague

The question is capable of being understood in multiple ways (e.g., “When did the red car run the red light?” when questioning has already established the existence of multiple red cars).

Fed. R. Evid. 611(a)

Assumes Facts Not in Evidence

The question assumes a fact that has not yet been established (e.g., “After the car Fed. R. Evid. 611(a) ran the red light, did it hit the blue car?” when the witness did not testify that the car ran the red light)

Misstates the Evidence

As part of the question, the lawyer has misquoted the witness or a document (e.g., “You testified that the car did not run the red light, correct?” when the witness testified that the car did run the red light)

Of course, finding universal consensus on what qualifies as a form objection is near impossible. For example, some courts have expanded the list of form objections to cover objections like “speculation” and “argumentative,”3 while others have said that certain objections listed above—e.g., ambiguous/vague—are not proper form objections.4 Still, generally speaking, the objections listed above can be called “safe” form objections. Unlike other objections, these objections focus on the improper manner of the questions themselves, not the content that the questions seek to elicit. b. Red light objections The Federal Rules of Civil Procedure also helpfully identify impermissible deposition objections. Under Rule 32(d)(3)(A), if a party at a deposition fails to object to the competency, relevancy, or materiality of testimony, such objections are not waived. And, Rule 30(c)(2), which states that objections should be stated “concisely in a nonargumentative and nonsuggestive manner,” bars speaking objections.5 Beyond these objections, courts have also consistently found that an objection is inappropriate if it includes an instruction to the witness that he or she should answer only “if you know.”6 The chart below is illustrative:

Improper Deposition Objections Type of Objection

Source

Relevance of testimony

Fed. R. Civ. P. 32(d)(3)(A)

Competence of the deponent

Id.

Materiality of testimony

Id.

Speaking objections

Fed. R. Civ. P. 30(c)(2)

Objecting and instructing a witness to answer only “if they know”

Case law

56 • THE FEDERAL LAWYER • January/February 2021

Fed. R. Evid. 611(a)

signature was the signature of the lawyer’s client. If an insufficient foundation has been laid for that question, a lawyer might object to the “competence of the deponent” to identify the signature in question.8 The lawyer questioning the witness could presumably “correct” such a deficiency by laying an appropriate foundation. By contrast, as at least one court has recognized, it is hard to see how an objection to the relevance of testimony could be corrected by the questioner.9 c. Yellow light objections As the prior discussion makes clear, the federal rules identify proper and improper deposition objections. Unfortunately, that leaves a long list of objections unaddressed by the rules. One could argue that, so long as these unaddressed objections are established trial objections, a lawyer can assert them at a deposition. This is because, under Federal Rule of Civil Procedure 30(c)(1), “[t]he examination and cross-examination of a deponent proceed as they would at trial[.]”10 If an objection is a legitimate trial objection, the logic goes, it is a fair objection to make a deposition. Below is a non-exhaustive list of established trial objections. Where the objection in question has case law or rule-based support, the author has added a citation. Of course, one should exercise caution when it comes to these objections. Although Rule 30(c)(1) provides support for asserting them, some courts have found that some objections on this list qualify as inappropriate deposition objections.11 One should always consider what, if anything, the judge presiding over his or her case has said about appropriate/inappropriate deposition objections. How should I assert objections at a deposition? If you have taken or defended a deposition, you have likely heard or even uttered the following four words: “Objection as to form.” A lawyer may have even chastised you for objecting in a different way, claiming that you were “coaching the witness.” Under the Federal

Rules of Civil Procedure, such a rebuke is unfounded. Again, under Federal Rule of Civil Procedure 30(c)(1), “[t]he examination and cross-examination of a deponent proceed as they would at trial[.]”12 Of course, at a trial, if a lawyer were to stand up when his or her witness is being questioned and proclaim, “Objection as to form,” it would likely engender a stern look from the presiding judge, who would either overrule the objection or ask the lawyer to be more specific. And, as the previous discussion makes clear, there are several “proper” deposition objections and “proceed with caution” deposition objections that are not, technically, objections to the form of the question. In such an instance, objecting to form would make no sense. Ultimately, then, when objecting at a deposition, a lawyer should state the objection “concisely in a nonargumentative and nonsuggestive manner.”13 By way of example, “Objection. Leading.” Many courts have endorsed this practice.14 Of course, there are some courts that insist that a lawyer say only “objection as to form.”15 Although the author thinks that these cases conflict with the plain text of Federal Rule of Civil Procedure 30(c) (1), one should always consider a more basic rule—“know your audience.” If you are practicing before a “form only” court, you should of course follow the court’s rules. Before moving on, it is worth adding a word about waiver. According to many lawyers, if you generically object to form only and don’t get more specific, you have safely preserved every form objection in the world for use at a later hearing or trial. If you get

more specific, these same lawyers will tell you, you have waived your ability to assert any form objections other than the specific one you lodged at the deposition. So, the logic goes, objecting to form is the more conservative and better approach to objecting at depositions. The premise of this advice is suspect. Numerous courts have held that, if a lawyer objects only to form, he has preserved nothing at all.16 As a result, if you plan to object to form only, you should confirm that such an approach does not risk waiver.

Witness Conferences During Depositions You are deposing a key witness in your case and you have him on the run. You have caught him in several blatant lies, even ones contradicted by the witness’s own emails. He’s literally sweating now, which is being captured on the video camera recording the deposition. Your opposing counsel finally interjects, asking to take a short break. Upon returning, your opposing counsel mentions that “her client would like to clarify a few things.” Of course, you suspect what has happened during the break. Opposing counsel has coached the witness, suggesting ways he might be able to gracefully walk back his prior testimony or twist it into something different. The questions enter your mind: is such a witness conference allowed? If not, what can I do about it? Can a lawyer confer with his or her client during a deposition break? Unfortunately, when it comes to witness conferences during depositions, the law is as clear as mud. It varies wildly from federal district

“Proceed With Caution” Deposition Objections Name of Objection

Description of Objection

Source

Speculation

The question asks a witness who lacks personal knowledge to guess.

Fed. R. Evid. 602; Zabit v. Peterson Power Sys., Inc., No. C 06-01252 JSW, 2008 WL 2445202, at *1 (N.D. Cal. June 16, 2008)

Asked and Answered/Cumulative

The questioner has already asked this question and re- Jadwin v. Abraham, No. 1:07-cv-00026-OWWceived an answer. TAG, 2008 U.S. Dist. LEXIS 116780, at * 13-14, 2008 WL 4057921, at *5-6 (E.D. Cal. Aug. 22, 2008)

Lack of Personal Knowledge

The questioner asks a witness who does not have personal Fed. R. Evid. 602; NGM Ins. Co. v. Walker Const. & knowledge of the matter. Dev., LLC, No. 1:11-CV-146, 2012 WL 6553272, at *2 (E.D. Tenn. Dec. 13, 2012)

Argumentative

The question is simply argument in the form of a question Harper v. Griggs, No. CIV A 04-260-C, 2007 WL (often contains adverbs, adjectives, or other characteriza- 486726, at *2 (W.D. Ky. Feb. 12, 2007) tions).

Best Evidence Rule

If the rule applies, the original document must be offered Fed. R. Evid. 1002 or the absence of it accounted for.

Beyond the Scope of Questioning

The questioning of the witness is going beyond matters Fed. R. Evid. 611(b) covered during the initial examination.

Bolstering

The question seeks to elicit testimony from the witness Fed. R. Evid. 608(a) about a person’s truthful character before that character has been attacked.

Question Calls for a Legal Conclusion

In general, a lay witness may not testify to conclusions, Fed. R. Evid. 602 and 702 including legal conclusions.

Counsel Testifying

During questioning, the lawyer simply makes a statement. Fed. R. Evid. 603

Improper Impeachment

The lawyer is impeaching the witness without following Fed. R. Evid. 607-610 the protocols set out in the Federal Rules of Evidence

Narrative

The question is so broad that it effectively frustrates the Fed. R. Evid. 611(a) ability to object to improper questions

Question Seeks Improper Lay Opinion

The question asks a lay witness to offer an expert opinion

Fed. R. Evid. 701 and 702

January/February 2021 • THE FEDERAL LAWYER • 57

to federal district and, even within federal districts, from federal judge to federal judge. Still, from a purely law-based standpoint, one can make a better argument that deponent-lawyer conferences should generally be allowed. This article will make that case first and then discuss the contrary case. a. The case for lawyer-deponent conferences Again, we start with the text of the rules. Unlike with objections, the Federal Rules of Civil Procedure do not expressly speak to the question of deponent-lawyer conferences during depositions. But, once again, a lawyer can rely, in part, on the general rule already discussed above: “[t]he examination and cross-examination of a deponent proceed as they would at trial[.]”17 This naturally gives rise to another question: at a civil trial,18 is a lawyer allowed to confer with his or her client during a break in the trial, whether that break occurs during direct-examination or cross-examination? Although many trial lawyers would confidently answer that question “no,” most would have difficulty identifying legal support for their answer. That is because there is no federal rule of procedure, evidence, federal circuit case, or U.S. Supreme Court case that expressly prohibits a lawyer from talking to his or her client/ witness while that client/witness is under either direct-examination or cross-examination.

Federal Cases Permitting Witness Conferences During Deposition Testimony • O done v. Croda Int’l PLC, 170 F.R.D. 66, 69 (D.D.C. 1997) (noting that court will not “penalize an attorney for utilizing a five-minute recess that he did not request to learn whether his client misunderstood or misinterpreted the questions and then for attempting to rehabilitate his client on the record”). • McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001) (“[C]onsultations, during periodic deposition breaks, luncheon and overnight recesses, and more prolonged recesses ordinarily are appropriate.”). • Circle Group Internet, Inc. v. Atlas, Pearlman, Trop & Borkson, P.A., No. 03 C 9004, 2004 WL 406988, at *2 (N.D. Ill. Mar 2, 2004) (“Defendants have cited and the court knows of no rule that prohibits a witness from consulting with counsel before the witness answers a question [during a deposition]. Defendants have failed to demonstrate that bank’s counsel acted improperly in having two private conversations with the witness [during a break in the deposition].”) • Cullen v. Nissan N. Am., Inc., No. 3-09-0180, 2010 WL 11579750, at *8 (M.D. Tenn. Feb. 2, 2010) (“[B]ecause of the lack of unanimity among courts addressing this issue, this Court cannot find that the plaintiff ’s conference with his counsel during the lunch break was clearly prohibited and thus not protected by attorney-client privilege.”). • Murray v. Nationwide Better Health, No. 10-3262, 2012 WL 3683397, at *5 (C.D. Ill. Aug. 24, 2012) (“This Court holds that defense counsel may have a private conference with Northrup during a recess that counsel did not request (and so long as a question is not pending), during the hour break already scheduled by the Court, and at any time for the purpose of determining whether a privilege should be asserted.”). 58 • THE FEDERAL LAWYER • January/February 2021

Notably, in arguing that “in trial” lawyer-witness conferences are inappropriate, lawyers often cite Federal Rule of Evidence 615, known by many trial lawyers as “The Rule.” But, as the plain text of the rule makes clear, Rule 615 bars trial witnesses from listening to other witnesses testify. The Rule reads: “At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own.”19 Indeed, contrary to conventional wisdom, the most persuasive authority on this issue—Potashnick v. Port City Const. Co.—held that, in a civil trial, a lawyer is allowed to confer with his client during breaks in the client’s trial testimony.20 Indeed, the Fifth Circuit held that a client has a constitutional right to confer with his lawyer during such breaks. Because the trial court in Potashnick had prohibited such communications, the Fifth Circuit reversed the judgment. The court wrote: “Our analysis of the fifth amendment to the United States Constitution establishes that a civil litigant has a constitutional right to retain hired counsel. Because the prohibiting of communication between a testifying party-witness and his attorney during an overnight recess in the party-witness’ testimony impinges on that constitutional right, we are compelled to reverse.”21 Given the plain text of Federal Rule of Civil Procedure 30(c)(1), the reasoning of Potashnick should apply with equal force in the deposition context. As far as deponent-lawyer conferences in the deposition context, the keystone case is In re Stratosphere Corp. Securities Litigation.22 Although the Stratosphere Corp. court did not endorse unrestricted deponent-lawyer conferences during a deponent’s deposition testimony, it permitted such conferences to occur under certain circumstances. The court wrote: This Court will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness. So long as attorneys do not demand a break in the questions, or demand a conference between question and answers, the Court is confident that the search for truth will adequately prevail.23 The table (left) identifies courts that have expressly allowed lawyers to consult with client witnesses during deposition breaks. Although this list is not exhaustive, these cases, along with the oft-cited Stratosphere Corp. case, can put you on the right track in terms of identifying cases that support deponent-lawyer deposition conferences. Of course, even if your court allows deponent-lawyer conferences, you must ensure that your conferences stay within ethical boundaries. For example, the Florida Bar’s Guidelines for Professional Conduct say that “[w]hile a question is pending, counsel should not coach the deponent nor suggest answers, through objections or otherwise.”24 b. The case against witness conferences The flip side of this authority are cases that expressly preclude deponent-lawyer deposition conferences. The hallmark case in this camp is Hall v. Clifton Precision, a case that has been cited over 156 times in judicial opinions.25 In Hall, Judge Gawthrop ordered that “counsel and their witness-clients shall not engage in private, off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege.”26 The below chart identifies courts that have followed Hall and

Federal Cases Prohibiting Witness Conferences During Deposition Testimony • U nited States v. Philip Morris Inc., 212 F.R.D. 418, 420 (D.D.C. 2002) (“It’s true that, in general, a deponent and the deponent’s attorney have no absolute right to confer during a deposition in a civil proceeding, except for the purpose of determining whether a privilege shall be asserted. This general prohibition may extend to communications occurring during breaks, lunch, or even overnight, if a deposition lasts for longer than a day.”). • Ngai v. Old Navy, No. CIV.A. 07-5653KSHPS, 2009 WL 2391282, at *4 (D.N.J. July 31, 2009) (“As with trial testimony, discussions between counsel and the witness may not occur because ‘once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.’”). • Vestin Realty Mortg. II, Inc. v. Klaas, No. CIV. 08CV2011 LAB, 2010 WL 4259946, at *4 (S.D. Cal. Oct. 25, 2010) (“Counsel and their witness-clients shall not engage in private, off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege.”).

expressly barred deponent-lawyer conferences during deposition breaks, with the exception of conferences to determine whether to assert a privilege. Notably, a number of federal districts have enacted local civil rules that expressly address deponent-lawyer conferences. Two federal districts, the U.S. District Court for the District of South Carolina and the U.S. District Court for the District of Delaware, have effectively codified the Hall rule in their local rules.27 Another federal district, the U.S. District Court for the Southern District of New York, is less restrictive of conferences, only barring private conferences between a defending attorney and a witness “while a deposition question is pending, except for the purpose of determining whether a privilege should be asserted.”28 Of course, it is critical that, prior to any deposition you take or defend, you consult the local rules of the federal district court where your case is pending. If I’m in a jurisdiction that prohibits deponent-lawyer conferences, can I inquire into the substance of the conference? A related question is whether, if you’re practicing before a court or in a district that prohibits deponent-lawyer conferences and such a conference occurs, you may ask the witness to disclose the substance of that conference. Numerous cases suggest that the answer is “yes,” effectively providing a mechanism for enforcing the “no conference” rule.29 Given the seriousness of waiving the attorney-client privilege, federal district and federal judge specific research is essential here.

Conclusion When it comes to taking depositions in federal cases, being forewarned is being forearmed. A quick review of your district court’s local rules, your judge’s positions when it comes to deposition objections and conferences (if available), and any relevant case law will ensure that you and your opposing counsel honor the rules both on and off the record. The author hopes that this article will give you

some leads when it comes to identifying the relevant guidelines for compliance.  John R. Byrne is a partner at León Cosgrove LLP, where he focuses on representing plaintiffs and defendants in consumer protection lawsuits. Before joining the firm, Byrne spent four years as an assistant U.S. attorney in Miami. He also clerked for Chief Judge Jeffrey R. Howard on the U.S. Court of Appeals for the First Circuit. Byrne serves on the board of the South Florida Chapter of the FBA.

Endnotes See Fed. R. Civ. P. 30(c)(2). See Fed. R. Civ. P. 32(d)(3)(B)(i). 3 See, e.g., NGM Ins. Co. v. Walker Constr. & Dev., LLC, No. 1:11-CV146, 2012 WL 6553272, at *2 (E.D. Tenn. Dec. 13, 2012); Harper v. Griggs, No. 04-260-C, 2007 WL 486726, at *2 (W.D. Ky. Feb. 12, 2007). 4 Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 WL 28071, at *5 (D. Kan. Jan. 5, 2012) (“An objection that a question is ‘vague’ is usually, and in this instance was, a speaking objection disguised as a form objection. It essentially expresses a concern that the witness may not understand the question. Only the witness knows whether she understands a question, and the witness has a duty to request clarification if needed.”). 5 Although almost any lawyer knows a speaking objection when he or she hears it, an example is worth providing here. Rather than saying “Objection. Foundation,” the lawyer specifically outlines the alleged problem with the foundation. See, e.g., Garner v. Mohave Cnty., No. CV-15-08147-PCT-PGR, 2016 WL 363653, at *1 n.1 (D. Ariz. Jan. 29, 2016) (citing the following objection as an example of an improper speaking objection: “Also object on the basis of foundation as this document. It says 11/25 of 2014 was the adoption date so that’s after Karen Garner’s incident just for the record.”). The problem with such questions is that they are vehicles to coach the witness. 6 Latele Television, C.A. v. Telemundo Commc’ns Grp., LLC, No. 12-22539-CIV, 2014 WL 5816585, at *10 (S.D. Fla. Nov. 10, 2014) (“[T]he Undersigned considers an ‘if you know’ comment to a deponent before he or she answers a deposition question to usually be improper coaching, designed to signal the witness to answer that he or she does not know or remember the answer.”); Cincinnati Ins. Co., 2012 WL 28071, at *5 (“Instructions to a witness that they may answer a question ‘if they know’ or ‘if they understand the question’ are raw, unmitigated coaching, and are never appropriate.”) (emphasis in original). 7 Fed. R. Civ. P. 32(d)(3)(A). 8 See, e.g., Klayman v. Judicial Watch, Inc., 297 F. Supp. 3d 80, 83 n.1 (D.D.C. 2018). 9 In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 618 (D. Nev. 1998) (“It is difficult to conceive of the likelihood that a question which calls for irrelevant information can be ‘cured’ by restating the question, unless the question is changed to ask for relevant (i.e., different) information. Accordingly, it would be rare that an irrelevant question could be cured.”). 10 Fed. R. Civ. P. 30(c)(1). 11 Meyer Corp. U.S. v. Alfay Designs, Inc., No. CV 2010 3647 (CBA) (MDG), 2012 WL 3536987, at *3 (E.D.N.Y. Aug. 13, 2012) (“First, I find that certain objections made by Dean Dickie, plaintiff ’s counsel, 1 2

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during the course of depositions, particularly that of Vincent Siano, were suggestive and inappropriate. These include objections which included comments that questions called for speculation, were vague or were ambiguous.”); AKH Co. v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2016 WL 141629, at *4 (D. Kan. Jan. 12, 2016) (“It is improper to instruct a witness not to answer a question because it lacks foundation or has been asked and answered.”). 12 Fed. R. Civ. P. 30(c)(1). 13 Fed. R. Civ. P. 30(c)(2). 14 See Henderson v. B & B Precast & Pipe, LLC, No. 4:13-CV-528 CDL, 2014 WL 4063673, at * 1 (M.D. Ga. Aug. 14, 2014) (“[I]f a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question … When ‘objection to form’ does not indicate what is wrong with the form so that the questioner can correct the problem, it becomes nothing more than a statement that the objector finds the question ‘objectionable.’”); Vargas v. Fla. Crystals Corp., No. 16-81399-CV, 2017 WL 1861775, at *6 (S.D. Fla. May 5, 2017) (“In sum, under the Federal Rules of Civil Procedure, a mere unspecified ‘form’ objection is insufficient to comply with the spirit, intent and language of Rules 30(c)(2) and 32(d)(3)(B).”); Wise v. Washington Cty., No. 10-cv-1677, slip op. at 16 (W.D. Pa. Mar. 7, 2014) (“Objections to form must sufficiently explain the objection so that the interrogator is able to revise the question and avoid the problem.”). 15 Druck Corp. v. Macro Fund (U.S.) Ltd., No. 02 CIV.6164(RO) (DFE), 2005 WL 1949519, at *4 (S.D.N.Y. Aug. 12, 2005) (“Any ‘objection as to form’ must say only those four words, unless the questioner asks the objector to state a reason.”); In re St. Jude Med., Inc., No. 1396, 2002 WL 1050311, at *5 (D. Minn. May 24, 2002) (“Objecting counsel shall say simply the word ‘objection’, and no more, to preserve all objections as to form.”); Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 WL 28071, at *5 (“[S]uch an objection to avoid a suggestive speaking objection should be limited to an objection ‘to form,’ unless opposing counsel requests further

clarification of the objection.”). Fletcher v. Honeywell Int’l, Inc., No. 3:16-CV-302, 2017 WL 775852, at *1 (S.D. Ohio Feb. 28, 2017) (“To the extent that counsel made a generic objection to ‘form,’ but failed to specify the basis for the objection, the Court also considers those objections to be waived.”); Sec. Nat’l Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 602 (N.D. Iowa 2014) (“Nothing about the text of Rules 30 or 32 suggests that a lawyer preserves the universe of ‘form’ objections simply by objecting to ‘form.’”). 17 Fed. R. Civ. P. 30(c)(1). 18 Although the topic of attorney-client conferences in criminal cases is beyond the scope of this article, the Supreme Court has generally blessed such conferences in Geders v. United States, 425 U.S. 80, 96 (1976) and its progeny. 19 Fed. R. Evid. 615. 20 609 F.2d 1101, 1117 (5th Cir. 1980). 21 Id. at 1104. 22 182 F.R.D. 614 (D. Nev. 1998). 23 Id. at 621. 24 The Florida Bar, Guidelines for Professional Conduct F-8 (2008), https://www.floridabar.org/prof/presources/ presources002/. 25 150 F.R.D. 525 (E.D. Pa. 1993). 26 Id. at 531–532. 27 D.S.C. Civ. R. 30.05(E); D. Del. R. 30.6. 28 S.D.N.Y. R. 30.4. 29 Ngai v. Old Navy, No. CIV.A. 07-5653-KSH-PS, 2009 WL 2391282, at *4 (D.N.J. July 31, 2009) (“[I]f an off-the-record conference occurs between the deponent and her counsel about a topic other than to discuss asserting a privilege, then the discussion is not protected by the attorney-client privilege and a ‘deposing attorney is [ ] entitled to inquire about the content thereof.’”) (alteration in original); Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527, 535 (M.D. Pa. 2002) (“[W]e think it is proper to allow plaintiffs’ counsel to question Brown about any discussion that took place during the two breaks.”). 16

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Best Practices in Virtual Proceedings RACHEL C. HUGHEY AND TARA D. ELLIOTT

n an effort to keep proceedings moving while also keeping court staff, litigants, and attorneys safe, courts have moved many historically in-person proceedings to a virtual format. The courts’ authority to proceed with some proceedings remotely has been discussed,1 although the authors are not aware of any comprehensive discussion of considerations of best practices for such proceedings. Relying on their learned experiences over the past nine months, the authors suggest the following best practices for virtual proceedings. Phone Hearings and Oral Arguments Most attorneys are familiar with phone hearings, as courts relied on phone hearings for status conferences, discovery disputes, and other proceedings even before COVID. But since COVID, many courts have relied on phone calls for activities that had historically been in person, including substantive oral arguments. The Federal Circuit and Supreme Court, for example, have been holding their oral arguments via phone. There are a number of best practices to consider for phone hearings.

Best Practice: Respect the Formality of the Virtual Proceeding Because many attorneys’ experiences with phone hearings have been primarily for more informal proceedings before the courts, some attorneys have not been treating more significant proceedings (e.g., oral arguments) with the necessary formality that would be expected were they in person. For example, we have seen attorneys interrupting one another, and even the judges, during oral arguments. In an in-person proceeding, an attorney would never (or should never!)

walk up to the podium during an opponent’s summary judgment oral argument. The same rules apply to phone conferences.

Best Practice: Be Even More Mindful of the Court Reporter You Cannot See Not only is interrupting poor form, but it also makes it very difficult for the court reporter to transcribe an accurate record. We have seen court reporters taking a more active role in reminding attorneys not to talk over each other, to mute their line when necessary, and to introduce, and reintroduce, themselves each time they speak. A slower speaking cadence helps the phone-based oral argument to go more smoothly, minimizes attorney crosstalk, and provides opportunities for judges to interject with their questions.

Best Practice: Be as Prepared as You Would Be for an In-Person Hearing Perhaps because attorneys are used to phone proceedings being less formal, and perhaps because there is not the pressure of one’s physical presence being a focal point in an in-person proceeding, we have noticed and heard stories of attorneys being less prepared in virtual proceedings than would otherwise be expected. For example, we have seen situations where attorneys, who presumably would never do this in person, merely read their arguments on the phone. It is just as ineffective to read an oral argument in a virtual proceeding as it is in an in-person proceeding. Do not do it. Counsel should be just as prepared for virtual proceedings as they would be for in-person proceedings; this includes being able to argue and respond to questions, including providing record citations, with as little reference to paper and electronic support as possible.

Best Practice: Pause for Questions On a phone conference, it is generally not possible to read the court’s body language to understand if a judge has a question or is confused by or agreeing with an argument. Some judges may just interrupt, but for others, the chance to answer these questions could be lost, January/February 2021 • THE FEDERAL LAWYER • 63

which ultimately is a missed opportunity for the advocate to address the concern and persuade the court. Attorneys have to be extremely purposeful in taking pauses during the arguments to allow for questions.

Best Practice: Pay Attention to Time For most oral arguments, there is a time limit. We have seen attorneys going long because of the lack of self-monitoring and variances in the tools the courtroom may use. Because the visual cues of lights or court body language are not available on a phone conference, it is imperative that attorneys self-monitor their time and practice it in advance of the hearing.

Best Practice: Oral Argument—Ask and You Might Receive The Federal Circuit is unique among circuit courts in that it grants oral arguments in virtually all cases where the parties are represented by attorneys. But post-COVID, the Federal Circuit has indefinitely suspended in-person oral arguments and has removed a number of scheduled oral arguments from the docket. Upon the request of one of the parties, however, such as the case in which a newer attorney was prepared to argue, the court agreed to hold an oral argument. In a situation where an oral argument has not been provided, consider requesting one.

District Court Video Hearings Over the past six months, many of us went from having never heard of Zoom or BlueJeans or any number of other video platforms to using them to perform a significant amount of work. Likewise, many courts have transitioned from in-person court hearings to virtual hearings via video. Until recently, these proceedings were generally unfamiliar to attorneys as well as the court, and there are several things to now consider. Many of the best practices for phone proceedings apply equally in video proceedings—do not interrupt, insert more pauses, mute (and unmute) your line,2 be prepared, and do not read your argument. Video proceedings do have some benefits over phone proceedings. One of the obvious benefits is that the court and counsel are visible. In addition to allowing the participants to read body language and facial expressions, it also makes it less likely that an accidental issue such as counsel dropping off the line will go unnoticed. But there are also some additional considerations for video court hearings.

Best Practice: Dress for Success Unlike phone proceedings, where participants can (and in the authors’ case, do!) dress informally, a participant in a video proceeding should dress like they would for an in-person proceeding. The authors are aware of anecdotal stories of counsel showing up for a video court hearing not wearing a jacket or dressed even more casually. As with an in-person proceeding, business formal dress is expected unless the court expressly directs otherwise (such as in the case for some court-assisted mediations).

Best Practice: Cultivate Your Frame In the past, attorneys preparing for a hearing did not think about lighting or background, as it was the same for all litigants appearing in person in a courtroom or irrelevant altogether for telephonic proceedings. But with virtual video proceedings, the court and litigants are being invited into private spaces—including their home 64 • THE FEDERAL LAWYER • January/February 2021

offices (or bedrooms or closets!).3 This requires attorneys to be mindful of staging and to reserve the additional preparation time to do it meaningfully, taking into account the height of the camera, the background color scheme and messaging (be it explicit or implicit), and lighting.

Virtual Evidentiary Hearings and Trials Since March, a number of cases have had evidentiary hearings and even trials via video proceedings, including patent cases.4 The best practices for phone hearings and video hearings also apply to evidentiary proceedings, but the inclusion of witnesses and exhibits means there are additional things attorneys should consider and that parties should discuss and agree to, or raise to the court for resolution, ahead of such proceedings, including: Are witnesses live? How do you/the witnesses view documents? Who is on video and when? What happens when an attorney or witness drops off or has technical difficulties? Practitioners are encouraged to keep abreast of the lessons learned from the early efforts in remote trials. Some best practices for evidentiary proceedings follow.

Best Practice: Make a Plan for Witness and Counsel Location In an in-person trial, the parties often come to an agreement about which witnesses can be in court and when. The parties should do the same (or ask the court for guidance) for remote proceedings, including understanding which witnesses can listen to other witness testimony. In addition, the parties should consider whether or not participants can be in the same room. In one recent bench trial, the judge ordered that counsel and witnesses could not be in the same room.5 In another, the court permitted foreign witnesses who were unable to testify to proceed remotely but required others to be in person.6 In yet another, to ensure fairness, all witness testimony was ordered to be remote.7

Best Practice: Beware of the Screen Share Sharing exhibits via video proceeding provides an extra layer of complexity. Attorneys should make sure to practice how they are going to share exhibits ahead of time so that they are comfortable with the process they will use prior to the proceeding. One particular word of caution is to be careful when using screen share—it is easy to accidentally show the wrong screen or have something unintentionally pop up (such as an email notification or Teams message) at the wrong time.

Best Practice: Assume the Same Rules Apply We are all generally familiar with our obligations and expectations in a physical courtroom trial. For example, attorneys and witnesses should not interact with jurors—including not sharing elevators. There was a recent fully remote jury trial in California state court where it was reported that, while the parties’ attorneys and the judge were in a Zoom breakout room, a witness “got into a friendly discussion with two jurors after noticing one had a virtual background of a courtroom setup.”8 While the judge agreed the communication was improper, the court ultimately denied the mistrial request. Since that

event, the court changed its Zoom protocol so that jurors, witnesses, and parties are kept in a “waiting room” where they cannot interact until the judge is present.

Have an Emergency Plan Perhaps the most important thing an attorney can do for virtual proceedings is to have a backup plan for the inevitable technological failure. We’ve heard stories of phone calls being dropped during hearings, power going out during hearings, and Wi-Fi malfunctioning during witness examination. Attorneys should have a backup plan, and a backup for the backup plan. Some ideas are to use a backup phone to dial into a phone hearing or a Zoom hearing, have someone else participating in the proceeding who can take over (or at least request a break) if you drop off, and have your IT department ready to troubleshoot any issues. The more important the proceeding is, the more robust the backup plan should be. 

at 4-6 (E.D. Tex. July 21, 2020) (denying Apple’s motion to continue in-person jury trial, ordering foreign witnesses to testify remotely). 7 Sunoco Partners Mktg. & Terminals L.P. v. Powder Springs Logistics, LLC and Magellan Midstream Partners, LP, No. 1:17cv01390, Dkt. 583 (D. Del. July 2, 2020) (ordering partially remote bench trial with all witness testimony remotely, trial later continued). 8 Daniel Siegal, Calif. Jurors’ Zoom Chat Not Grounds For Mistrial, Judge Says, Law360 (Aug. 19, 2020), https://www.law360.com/ip/ articles/1302843/calif-jurors-zoom-chat-not-grounds-for-mistrialjudge-says?nl_pk=2a741ce8-d2e2-494c-82c2-5bf40c6aa5d2&utm_ source=newsletter&utm_medium=email&utm_campaign=ip (discussing Wilgenbusch . v. Metalclad Insulation LLC, No. RG19029791 (Cal. Super. Ct., Sept. 28, 2020)).

Rachel C. Hughey is a partner and shareholder at Merchant & Gould P.C. in Minneapolis and a co-chair of her firm’s appellate practice. She specializes in complex commercial litigation and represents clients in state and federal trial and appellate courts across the country. Hughey currently serves on the Law360 Intellectual Property Editorial Advisory Board.Tara D. Elliott, a partner in the Washington office of Latham & Watkins, is a first-chair trial lawyer whose practice focuses on high-profile intellectual property proceedings and commercial litigation. Elliott is recognized as a top lawyer by leading legal publications, including The National Law Journal, IAM Patent 1000, Managing Intellectual Property, and Chambers. Recently, she was honored by Savoy Magazine as among the country’s Most Influential Black Lawyers.

Endnotes E.g., Christopher Green and Sara Fish, Weighing The Virtual Courtroom Option In Civil Cases, Law360 (Aug. 19, 2020), https://www.law360.com/ip/articles/1302546/weighing-thevirtual-courtroom-option-in-civil-cases?nl_pk=2a741ce8d2e2-494c-82c2-5bf40c6aa5d2&utm_source=newsletter&utm_ medium=email&utm_campaign=ip. 2 At the end of one video proceeding, a member of a legal team was heard saying that a witness was “obviously lying” and was “crashing and burning.” Jonathan Browning, Barclays Lawyer Caught on Zoom Saying Staveley Was ‘Lying,’ Bloomberg ( June 12, 2020), https:// www.bloomberg.com/news/articles/2020-06-12/barclays-lawyercaught-on-zoom-saying-that-staveley-was-lying. 3 The problems surrounding background, framing, and lighting in virtual proceedings are not unique to attorneys. See Kenzie Bryant, For Cable Pundits Turning Their Homes Into Makeshift Studios, Only One Opinion Matters, Vanity Fair (Apr. 23, 2020), https://www. vanityfair.com/style/2020/04/rate-my-skype-room-twitter. 4 E.g., Centripetal Networks, Inc. v. Cisco Sys. Inc., No. 2:18cv00094, Dkt. 406 (E.D. Va. Apr. 23, 2020) (ordering bench trial via Zoom, rejecting Cisco’s arguments that the platform is not sufficiently secure and that cross-examination will not be as effective). 5 Bioventus LLC v. Trindent Consulting Int’l. Inc., No. 1:18cv00815815, Dkt. 71, at 4-5 (M.D.N.C. June 26, 2020) (setting forth protocol for remote trial via Zoom). 6 Optis Wireless Tech, LLC v. Apple, Inc., No. 2:19cv00066, Dkt. 387, 1

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66 • THE FEDERAL LAWYER • January/February 2021

Federal Rules of Evidence 902(13) and 902(14)—

A Useful Tool for Electronic Data JORDI C. MARTÍNEZ-CID

mong the myriad ways the coronavirus pandemic has disrupted our lives has been how it has caused people to spend increasingly more time online or engaged with electronics, and it has forced the legal system to adapt its practices to carry out its duties in an effective manner. As a result, practitioners should be aware of the relatively new and sometimes overlooked Federal Rules of Evidence 902(13) and 902(14). These subsections deal with how litigants can authenticate certain kinds of electronic data. Given that there will presumably be more electronic data that could become evidence and that the judiciary is actively seeking how to modernize evidentiary hearings and trials, litigators should familiarize themselves with these rules because of their benefits

Federal Rules of Evidence 902(13) and 902(14) Streamline Authentication Requirements for Electronic Data In 2017, subsections 13 and 14 were added to Federal Rule of Evidence 902. As the subsections are brief, they are included here: The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: (13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification

requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11). (14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).1 What these subsections represent is a streamlining of authentication requirements, reducing the expense and inconvenience in getting certain forms of electronic data authenticated. They seek to accomplish this by allowing a party to authenticate records generated by an electronic system or data copied from electronic devices or files without the need for a foundation witness.

Making Use of the Subsections Lends Itself to Our Current Environment Given the paucity of cases surrounding subsections 13 and 14, they are either being underutilized2 or used with very few objections from adverse parties.3 They should be used more and are particularly useful now for a few reasons. First, people in general are spending more time online and presumably creating more electronic data.4 Second, people are increasingly more aware of this kind of data, and this kind of data is taking on an increasing level of importance.5 Third, the pandemic has caused individuals and companies—which previously may have been more amenable to certifying business records or the like—to focus on more pressing needs. Now a single “qualified person,” using forensically sound methods, can certify diverse kinds of electronic data, including corporate emails, social media from different platforms, footage from surveillance devices or drones, and text messages.6 January/February 2021 • THE FEDERAL LAWYER • 67

While there is always a practical reason for why a litigator might want to use these subsections—namely to not call a foundation witness and all that it entails—pandemic-related changes to the legal system make the subsections even more attractive. For those remaining in-person hearing and trials, the subsections allow practitioners to avoid dealing with foundation witnesses who may not be willing to expose themselves to public spaces or risk air travel under the current conditions. For remote evidentiary hearings and trials, practitioners can avoid being at the mercy of foundation witnesses and their computers, the strength of their internet connections, and their facility with video-conferencing software. And, given that the subsections require that adverse parties be given reasonable notice, lawyers will often be apprised of real disputes regarding the evidence ahead of the hearing or trial and can adequately prepare.

Complying With the Requirements of the Subsections Is Relatively Simple One of the primary differences between the subsections is that subsection 13 allows for the authentication of data output by electronic systems, while subsection 14 allows for the authentication of copies of data from electronic systems. Despite certain courts not focusing on the differences between the subsections,7 parties should take precautions to ensure they are proceeding under the correct subsection. As one commentator synthesized the difference, subsection 13 deals with data generated by computers while subsection 14 deals with data generated by people.8 Regardless of which subsection is the correct one for the electronic data, the party needs to obtain a written certification by a “qualified person” or custodian.9 Self-serving declarations by counsel for the proponent of the evidence are insufficient.10 Generally speaking, a qualified person is one who understands how the data system operates and is often an IT specialist, an investigator, a forensic accountant, or a litigation support/e-discovery specialist. This qualified person or custodian should be able to attest to the following: • Th ey are familiar with and have requisite education or skills to use the process or system that produces the data. • The process or system used is forensically sound and capable of producing accurate results. • The data constitutes a “Record of a Regularly Conducted Activity” under Federal Rule of Evidence 803(6)(A)-(C). • A jurat or declaration under oath, which may differ depending whether the evidence is a domestic or foreign record. Ideally, the certification should be detailed, include the above declarations, and highlight steps taken to ensure reliability and accuracy. Depending on the record retrieved, special care should be taken with regard to the metadata, which is the “structural information of a file[.]”11 Metadata is different from the underlying record or data and is normally not accessible to users. It is referenced by the advisory committee notes, and courts oftentimes focus on this metadata to determine authenticity.12 The rule also requires that the record and certification be made available for inspection and that the adverse party has “reasonable written notice of the intent to offer the record[.]”13 That the data is authentic does not mean that it is admissible. As the subsections only deal with the authenticity of the data, they do 68 • THE FEDERAL LAWYER • January/February 2021

not suddenly bring certain kinds of electronic data into the ambit of becoming evidence, and they do not address the ownership, control, reliability, or relevance of the evidence. The subsections address neither the accuracy of the data nor its substance, and they are not by themselves capable of overcoming a hearsay objection.14 Therefore, practitioners may want to consider whether the qualified person should address relevancy, chain of custody, and identity issues referenced in Federal Rules of Evidence 401 and 901 to arrive at the end goal of having the evidence introduced.15

Practitioners Should Pay Attention to the Rule Early and Make Greater Use of It Parties often fail to focus on trial-related issues at the outset of a case; this is a mistake. Practitioners need to think about the collection and authentication of data as early as possible. This is particularly true given the ephemeral nature of some electronic data. Ensuring proper collection of the data can prove the difference with regard to more “modern” lawsuits, such as ones involving allegedly defamatory statements made through various social media platforms, including TikTok, that can be modified or removed in an instant. But it can also be crucial even in more “traditional” litigation cases. For example, in a case alleging breach of contract, metadata and other electronic information showed that the defendant could not have breached the contract attached to the complaint because that contract was not in existence at the time of the supposed breach. The other party, unable to locate and authenticate the contract that was presumably in place, decided to negotiate a settlement on terms very favorable to the defendant. In other cases, the subsections have been cited to defeat assertions by criminal defendants that they had been prejudiced and could not obtain evidence from a computer database,16 and they may have been instrumental in the failure to oppose a motion to compel arbitration.17 Further, providing the certification and notice to the adverse party well ahead of an evidentiary hearing or trial can avoid unnecessary objections and litigation posturing, or could strengthen claims that the opposing party is acting in bad faith or with a misunderstanding of the facts. As explained, Federal Rules of Evidence 902(13) and 902(14) are useful, easy-to-use tools that should form part of a federal litigator’s arsenal. The pandemic makes them all the more useful and valuable. Practitioners and parties can reduce costs and save time and effort in authenticating data using those subsections and can utilize them as offensive or defensive tools in litigation.  Jordi C. Martínez-Cid is a partner in the Miami

office of León Cosgrove, LLP, where he specializes in media and international litigation and arbitration. Martínez-Cid is a graduate of Yale Law School and is a former federal law clerk and a former in-house attorney at NBCUniversal. Responses are welcome. Copyright © 2020 by Jordi C. Martínez-Cid.

Endnotes Fed. R. Evid. 902(13)-(14). The author’s research uncovered only two federal circuit court opinions regarding these specific subsections and a handful of district court opinions. See United States v. Dunnican, --- F.3d ----, no. 19-3092, 2020 WL 3056229, at *7 (6th Cir. June 9, 2020) (discussing

1 2

the authenticity of records certified by a special agent who performed the digital extraction); United States v. Gasperini, 729 Fed. App’x 112, 114-15 (2d Cir. 2018) (affirming the authenticity ruling of the trial court under Fed. R. Evid. 902(14)). 3 Some commentators have suggested that the subsections are “regularly used” and conclude that the limited number of opinions is because the subsections “are functioning as intended.” Parties have either stipulated to authenticity, or courts have so determined in a straightforward manner. See Andrew Schupanitz and Jacklin Chou Lem, Judges’ Treatment of Federal Rules of Evidence 902(13) and 902(14), 68 DOJ J. Fed. L. & Prac. 109 (2020). 4 See Ella Koeze and Nathaniel Popper, The Virus Changed the Way We Internet, The New York Times (Apr. 7, 2020), https://www. nytimes.com/interactive/2020/04/07/technology/coronavirusinternet-use.html (noting an increase in online and app usage); Marguerite Reardon, Coronavirus transforms peak internet usage into the new normal, C|NET (Mar. 23, 2020), https://www.nytimes.com/ interactive/2020/04/07/technology/coronavirus-internet-use.html (noting spiking internet traffic resulting from the pandemic). 5 See, e.g., Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) (affirming a decision that the president of the United States violated the First Amendment by blocking users from accessing or interacting with his Twitter account). 6 See Fed. R. Evid. 902(13)-(14). 7 Compare United States v. Bondars, No. 1:16-cr-228, 2018 WL 9755074, at *2 (E.D. Va. Aug. 20, 2020) (holding that “screenshots taken from the Internet Archive’s Wayback Machine,” which are presumably akin to computer printouts, could be authenticated under Fed. R. Evid. 902(13)), and United States v. Zuschlag, No. 2:16-cr-158-DBH, 2008 WL 2669957, at * 4 (D. Me. June 4, 2018) (citing both sections as a manner in which data retrieved from a computer database could be authenticated), with Rosado-Mangual v. Xerox Corp., No. 15-3035, 2019 WL 7247776, at *29 (D.P.R. Dec. 27, 2019) (quoting United States v. Meienberg, 263 F.3d 1177 (10th Cir. 2001)) (finding that computer printouts were not properly authenticated under Fed R. Evid. 902(13) because they are “not the result of a process or system used to produce a result, but merely printouts of preexisting records that happened to be stored on a computer”). 8 See 2 Robert E. Larsen, Navigating the Federal Trial § 9:6 (2020). 9 Fed. R. Evid. 902(13)-(14). 10 See La Force v. GoSmith, Inc., No. 17-cv-05101, 2017 WL 9938681, at *3 (N.D. Cal. Dec. 12, 2017) (holding that a declaration by plaintiff ’s counsel that included the date, device, and browser used to obtain a webpage and screenshots, that did not include a verification that counsel had been the one that retrieved the data was insufficient for finding authenticity under Fed. R. Evid. 902(13)). 11 The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management (Fourth Edition), 15 Sedona Conf. J. 339 (2014), https://thesedonaconference.org/ publication/The_Sedona_Conference_Glossary. 12 See Fed. R. Evid. 902 advisory committee’s note to 2017 amendment; see also Gasperini, 729 F. App’x at 114-15 (holding that the evidence was authentic, in part, because the copies of data were “validated by matching the ‘hash values’ of the copies and originals”). 13 Both subsections 13 and 14 reference the notice requirements of Rule 902(11). It is from that rule that the quote above was taken.

See Fed. R. Evid. 902 advisory committee’s note to 2017 amendment. 15 In the criminal context, the government may also want to consider issues stemming from the Sixth Amendment’s right to confront witnesses. 16 See United States v. Zuschlag, No. 2:16-CR-158, 2008 WL 2669957, at * 4 (D. Me. June 4, 2018). 17 La Force v. GoSmith, Inc., No. 17-cv-05101, 2017 WL 9938681, at *3 (N.D. Cal. Dec. 12, 2017) (Plaintiff disputed that certain terms of use that defendant was citing as the basis for the agreement to arbitrate were in fact the terms plaintiff had agreed to at the time. The court disagreed, citing, in part, that the screenshots of previously used terms on the website were not properly authenticated.). 14

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Book Reviews

Originalism as Faith By Eric J. Segall Cambridge University Press, New York, NY, 2018

254 pages, $14.49 (paperback), $97.43 (hardcover) Reviewed by Diego M. Pestana

Professor Eric Segall’s Originalism as Faith endeavors to expose the flaws within originalism and how originalists understand and apply it. Originalism is the legal philosophy that calls for interpreting the U.S. Constitution using an original understanding of the words adopted in the document (including its amendments) at the time of ratification. Segall points to recent Supreme Court judicial confirmations to illustrate the importance of tackling originalism head on. For example, Segall references how Justice Elena Kagan, during her Senate confirmation hearing, stated: “We are all originalists.” Segall also references how Justice Neil Gorsuch agreed with Justice Kagan’s statement during his confirmation hearing. In light of these high-profile statements, as well as ongoing debates among originalists about how to correctly apply their philosophy and “living constitutionalists” (who believe the Constitution should be interpreted consistent with modern values), Segall sets the stage for

analyzing originalism’s beginning and modern understanding. Segall begins by asserting that Supreme Court justices sometimes use the Constitution’s original meaning to decide cases. But many times, Segall argues, the justices simply pay lip service to originalism while employing their personal values to interpret legal texts and history. In fact, according to Segall, justices decide most cases based on their personal values. So he argues that justices should be transparent about the minimal effect an original understanding of the Constitution has on their decision-making. In this respect, Segall sides with legal realists, who also believe justices strategically use formal legal doctrines to arrive at a decision that aligns with their policy preferences. Segall puts forth two solutions to address the justices’ covert way of deciding cases based on their personal values. Judges should defer to the constitutionality of laws and only strike down a law “when the evidence of constitutionality is compelling.” Or justices should recognize that originalism provides no help in deciding most difficult cases but that personal experiences and values help decide those cases. With these two solutions asserted, Segall proceeds to review how courts historically decided cases involving constitutional questions. Segall discusses how Alexander Hamilton, in The Federalist Papers, was one of the first Founding Fathers to discuss judicial review of legislation. For Hamilton, legislation that violated the constitution was invalid, and courts were designed to strike down unconstitutional laws. Hamilton had no fear about a powerful judiciary vetoing legislation. Segall points out that Chief Justice John Marshall shared Hamilton’s view, and that view was affirmed in Marbury v. Madison, which stated that “it is emphatically the province and duty of the Judicial Department to say what the law is.” Despite an apparent agreement on the judiciary’s power, Segall notes no consensus existed for two important questions: (1) how should judges interpret the Constitution, and (2) how much should judges defer to federal and state laws. With respect to how the Con-

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stitution should be interpreted, Segall claims the founders agreed generally that the intent behind a law mattered, the focus should be the law’s language and context, the search for a law’s meaning should not be a historical inquiry, and the most important intent to consider is that of those individuals involved in the state conventions that ratified amendments—not the original drafters’ intent. With respect to how much judges should defer to federal and state laws, Segall writes that, although unclear, the founders’ beliefs about deference matters when criticizing originalism. According to Segall, many modern originalists, like Professor John McGinnis, believe judges today should exercise the same deference the founders intended. Other originalists, like Professors Randy Barnett and Ilya Somin, believe the burden of proving that a law is constitutional should be on the government when the law limits personal liberty. In his review of caselaw before and after Marbury, Segall concludes that judges historically have been willing to strike down legislation when it affected the judiciary, but judges were otherwise deferential to the legislature. Segall also reviews 19th century caselaw, especially the infamous Dred Scott v. Sandford, and argues that, in most cases, the original intent of a constitutional provision or law is unclear. Segall’s solution—to avoid judges using indeterminable historical sources to justify an outcome that conforms to their personal values—is extreme judicial deference to the elected branches. In tracking originalism’s development, Segall organizes his discussion of judicial review in two timeframes: 1865-1950 and 1952-1972. From 1865 to 1950, most constitutional law cases involved the rights of African Americans. Segall points out that, during this time, the Court did not frequently invalidate state laws. But that reluctance changed when laws affected the country’s growing economy. To illustrate this change, Segall discusses Lochner v. New York, in which the Court struck down a state law that limited how many hours a week that bakery employees could work. Citing the Fourteenth Amendment’s guarantee of due

process before depriving a person of “life, liberty, or property,” the Court concluded that the state law illegally interfered with the rights of employees and employers to contract. Segall discusses Justice Holmes’s dissent, in which the justice stated that the Court should have deferred to the state and that the Constitution “is not intended to embody a particular economy theory.” Segall also points out that Lochner has no discussion about the original meaning of the Fourteenth Amendment. So Segall argues that nothing about Lochner is originalist. Segall points out that, in the years after Lochner, the Court invalidated state and federal labor laws. That changed, however, in the New Deal era when the Court began deferring to legislation. The case Segall uses to illustrate this is United States v. Carolene Products, decided in 1938. There, the Court concluded that federal law prohibiting interstate shipment of filled milk passed the rational basis test. In its decision, the Court stated that Congress had the duty to decide whether milk was a matter of public safety because that issue was “at least debatable.” Carolene Products noted that, although rational basis analysis applied to the law affecting the shipment of milk, other constitutional analysis might apply to laws affecting other issues, like race or religion. This note, which Segall argues would go on to affect constitutional issues in the following years, included no reference to originalist or historical sources. Segall characterizes Carolene Products and its note about different constitutional analyses as a “dramatic shift.” In the second period that illustrates originalism’s development (1952-1972), Segall discusses two landmark decisions: Youngstown Sheet & Tube Company v. Sawyer (the Steel Seizure case) and Brown v. Board of Education. By the time these cases are decided, legal realism (a philosophy that asserts that original understanding of the constitution and formal interpretive methods provide little help with modern constitutional issues) predominated. Steel Seizure held that President Harry Truman had no authority to seize privately owned steel mills to support the military’s efforts during the Korean War. According to Segall, Steel Seizure is noteworthy partly because the Court included little originalist discussion in an important case overriding a president’s action. Also, Segall points out that Justice Robert Jackson’s famous concurrence, which lays out a framework for determining whether a president acts lawfully, lacks an

originalist foundation. So in an important constitutional case, Segall finds noteworthy the Court’s inattention to the original meaning of the Constitution. The second landmark decision Segall discusses, Brown v. Board of Education, held segregation unconstitutional. According to Segall, Brown clearly rejected an originalist approach when it found historical sources inconclusive on whether an originalist understanding of the Fourteenth Amendment allowed segregation. Instead, the Court considered social science when concluding that “separate but equal” violated the Fourteenth Amendment’s guarantee of equal protection under the law. Segall points out that Brown—one of the most important Supreme Court decisions—was decided using no originalist evidence. What followed, according to Segall, were other landmark rulings in the 1960s and 1970s that lacked an originalist foundation, like Gideon v. Wainwright, which held that indigent state criminal defendants had a right to a state funded defense attorney. Segall asserts that the lack of meaningful originalist discussion in these landmark cases resulted in an “originalism backlash among judges and legal scholars.” Segall then shifts to discussing the “original originalists” and their critics. He begins by noting that the Warren and Burger Courts’ decisions on issues like privacy resulted in a backlash against the Court. That backlash, in turn, resulted in the rise of jurists like Justice William Rehnquist and Robert Bork. Jurists of this type believed that the Courts’ recent decisions demonstrated how the justices implemented their personal values into their decisions instead of applying the Framers’ understanding. This growing movement of jurists and scholars who placed special importance on an original understanding of constitutional provisions gave birth to the Federalist Society, an organization that promotes originalism. The “original originalists” had their critics, Segall explains. Among these critics were Justice William Brennan and Justice John Paul Stevens. Justice Brennan stated that attempts to discern the Framers’ original intention were “arrogance cloaked as humility,” because evidence about that intent is frequently inconclusive. Justice Stevens stated that focusing on the Framers’ original intention overlooks important developments in modern caselaw. Segall notes that, despite these high-profile discussions about originalism, when President Ronald

Reagan nominated Justice Antonin Scalia to the Court, originalism played a minor role in his confirmation. That lack of debate of originalism changed, however, when President Reagan nominated Robert Bork to the Court. Segall writes that Bork took a more combative approach to his nomination and doubled down on his originalist beliefs, including his criticism of the Warren Court. That approach led to his nomination failing. But, according to Segall, originalism began to transform and became indistinguishable from living constitutionalism. Next, Segall discusses how originalism evolved after Justice Anthony Kennedy and Justice Clarence Thomas were confirmed. “New Originalists”—a group that includes Professor Keith Whittington—developed a legal philosophy “largely indistinguishable” from doctrines that the Warren and Burger Courts employed. New Originalists argue that judges should focus on the original meaning of constitutional provisions when ratified—not the original intent of those who ratified the provisions. Also, New Originalists distinguish between judicial interpretation and judicial construction. According to Professor Lawrence Solum, judicial interpretation involves discovering the meaning of constitutional text. Judicial construction, on the other hand, is determining the legal effect of that text. When vague language, like “cruel and unusual punishment,” is at issue, and judges cannot easily apply the meaning of that language (i.e., judicial interpretation) to the facts of the case (i.e., judicial construction), then those constitutional questions enter what Solum calls the “construction zone.” At this point, once ratification-era evidence is no longer useful, New Originalists argue that judges should employ other means of constitutional construction, including normative standards. Segall argues that this “construction zone” theory is indistinguishable from non-originalism because both theories envision a judge employing normative standards or values to decide a case after an analysis about the text’s original meaning is inconclusive. Segall sees little distinction, if any, between New Originalists and living constitutionalists because original meaning and historical evidence play a limited role under both theories. After discussing the New Originalists and the shortcomings in their theories, Segall turns to the “New, New Originalists.” This group consists of followers of two new forms of originalism. The first group promotes

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“inclusive originalism.” This group consists of individuals like Professor Will Baude and Profesor Stephen Sachs. “Inclusive originalism” is the idea that the Constitution’s original meaning is the ultimate criterion for constitutional law questions, but judges can look to later developments, like precedent, if those developments are consistent with the original meaning. Under this theory, judges can interpret a constitutional provision in a way that would have been unexpected when it was ratified. Segall argues this theory is indistinguishable from living constitutionalism because under both theories judges may interpret vague constitutional provisions according to modern understanding. The second New, New Originalists group Segall discusses consists of those who promote “original methods originalism.” This group includes individuals like Professor John McGinnis and Professor Michael Rappaport. “Original methods originalism” asserts that an original understanding of constitutional provisions should govern because ratification of those provisions required more consensus and agreement than ordinary legislation. Supporters of this theory argue that, to interpret a constitutional provision consistent with the supermajority that ratified it, judges should use “original interpretative methods”—that is, methods of interpretation the ratifiers would have expected judges to use. Segall sees two problems with this theory. First, the supermajority that ratified provisions excluded women and people of color. That weakness undermines the argument from a democratic-legitimacy point-of-view. Second, supporters of the theory, like McGinnis, fail to show how using “original interpretive methods” would work. So Segall finds neither “inclusive originalism” nor “original methods originalism” convincing. Segall proceeds to analyze the decisions of the two self-identified originalists at the time of his writing: Justice Antonin Scalia and Justice Clarence Thomas. Segall argues that an examination of the two justices’ decisions demonstrates that both fall short of their originalist ideals. In areas of law including campaign finance reform, affirmative action, commandeering (whether the federal government may require states to help implement federal law), state sovereign immunity, standing, and criminal procedure, Justice Scalia and Justice Thomas sided with an outcome that historical evidence did not support or, in certain cases, contradicted. So Segall argues that the justices used original-

ism when it helped arrive at their desired outcome but ignored it when originalism did not help achieve their preferred ends. Segall then discusses a notable case decided on originalist grounds: District of Columbia v. Heller. Heller holds that the Second Amendment protects an individual’s right to keep a gun at home for self-defense. According to Segall, most originalists claim that the most important aspect of Heller is that the majority (written by Justice Scalia) and the dissent (written by Justice John Paul Stevens) relied on originalist grounds. But Segall points out that most historians criticize both opinions as inaccurate. These shortcomings lead Segall to argue that there are two coherent solutions. Either judges should defer to legislative decisions and require challengers to a law to satisfy a high burden of providing with clear and convincing evidence (e.g., unambiguous text or strong ratification-era evidence) that the law violates the Constitution. Or, judges should recognize that society is constantly changing and rule based on what he or she believes is best when considering the text, history, precedent, and consequences. For Segall, searching historical sources to determine a constitutional provision’s historical, objective meaning is not a coherent solution. Segall turns next to discuss why he believes justices’ values and ideology—not the law—decide cases. He points out that, unlike legal scholars, many political scientists believe justices are not constrained by the Constitution. Segall examines doctrinal shifts by the Court in various areas, like commercial free speech and interstate commerce, and concludes that these shifts were due to different justices’ values (as well as changes in societal values) rather than changes in the law. Segall suggests that originalism remains a popular philosophy—despite its shortcomings—because it provides its supporters, and the public, with a sacrosanct belief in judicial review and the rule of law. But Segall argues this faith in originalism’s promises is unnecessary. Instead, he asserts that we should have faith that justices will do their best to reach sound decisions and, if they do not, then the nomination process will result in justices who will decide cases another way. Segall concludes that originalism becomes an article of faith when originalists fail to acknowledge that justices—originalist and non-originalist—decide cases based on their personal values. For Segall, the solution to “judicial activism” is for justices to strike

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down a law only after finding compelling evidence about its unconstitutionality. Originalism as Faith is an important addition to the ongoing discussion about originalism. Segall presents strong arguments about weaknesses in various originalist philosophies, and he presents a strong argument about how originalist justices use originalism—or do not use it. If the reader tends to disagree with originalism, Segall’s book will offer an alternative approach to advocate. If the reader agrees with originalism, Segall provides arguments that originalists should understand and address.  Diego M. Pestana is a judicial law clerk to Hon. Michael P. Allen of the U.S. Court of Appeals for Veterans Claims. He obtained his undergraduate degree from Saint Leo University and his law degree from Stetson University College of Law. The views expressed are solely those of the author.

Defender in Chief: Donald Trump’s Fight for Presidential Power by John Yoo All Points Books, St. Martin’s Press, New York, NY, 2020

310 pages, $29.99

Reviewed by Louis Fisher

(Note: a previous version of this book review appeared in LegBranch.org, Aug. 12, 2020.) The title of this book may seem very supportive of President Donald Trump, but a publication should be judged by its content

and analysis. The work reflects extensive research backed by documentary evidence. Yoo does not offer automatic support for all presidential initiatives. As Yoo explains at the end of Chapter 7, although Congress, at the request of President Lyndon Johnson, passed the Gulf of Tonkin Resolution, the Vietnam War “still provoked some of the most divisive politics in American history.” In the Introduction, Yoo explains that he did not vote for President Trump in the 2016 primary or general election. His “many personal and professional flaws, including his bankruptcies, sexual scandals, crude and cruel language, repelled me.” For Yoo, President Trump seemed like “a populist, even a demagogue, who had not prepared for the heavy responsibilities of the presidency.” Drawing from his experience in all three branches of government, Yoo worried that President Trump “would test, evade, or even violate the Constitution.” However, Yoo then offers this perspective: “Boy was I wrong. Trump campaigns like a populist but governs like a constitutional conservative.” Yoo did not agree with all of President Trump’s initiatives. Toward the end of the Introduction, Yoo asserts that he did not “share Trump’s restrictionist approach to immigration or his suspicion of free trade and the American-led postwar order.” If President Trump ended up “pulling back America’s global commitments, I would regret the moves and question whether they serve our national interests.” The Introduction concludes by predicting that President Trump “could achieve his political agenda because he has returned to the Framers’ original vision of the presidency as an office of unity, vigor, and independence. In securing the benefits of an energetic executive for his successors, Trump may have done the nation his greatest service.” In evaluating presidential power, Yoo turns frequently to the writings of Alexander Hamilton, particularly essays in the Federalist Papers. Dependence on Hamilton would lead any writer to support broad and independent presidential power in both domestic and external affairs. Yoo does not mention Federalist No. 4 by John Jay, who issued clear warnings about executive power: “It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it.” Absolute monarchs, he said, “will often

make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.” Executive leaders will often engage in wars “not sanctified by justice or the voice and interests of his people.” Jay was not referring solely to British monarchs. His warning applied to single executives in any political system, including in America. In several places, Yoo discusses the Neutrality Proclamation that President George Washington issued in 1793. There is no explanation that this presidential initiative backfired when the administration began to prosecute individuals for violating the proclamation. In response, jurors made it clear they would acquit anyone brought into court. Why? Because in their view, criminal law under the U.S. Constitution requires action by both branches through the statutory process. Unilateral presidential action was unacceptable. President Washington quickly understood his error, halted prosecutions, and sought support for legislation that became the Neutrality Act of 1794. Jurors understood the Constitution better than Washington and his legal advisers—a good early example of why national policy cannot be left to presidential initiatives. From Washington forward, we have had many presidential military operations that required checks by Congress and the judiciary. Yoo does not mention that when President John Adams engaged in certain military actions in the War against France, the Supreme Court in Little v. Barreme (1804) held that a proclamation by Adams exceeded the authority granted to him by statute. The decision was unanimous. Although Yoo refers to the Mexican-American War of 18461848, he does not mention that the House of Representatives in 1848 censured President James Polk for acting “unnecessarily and unconstitutionally” against Mexico. Yoo discusses initiatives taken by President Abraham Lincoln at the start of the Civil War. Correctly, Yoo says that Lincoln “was no dictator.” Although Lincoln acted unilaterally, he explained that his measures “whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them.” Yoo does not mention that Lincoln acted independently because Congress

was not in session. To make his actions legal, Lincoln understood he needed Congress to pass legislation, which Congress proceeded to debate and pass upon its return. In covering the Spanish-American War in 1898, Yoo correctly states that Congress did not declare war until after “the destruction of the U.S.S. Maine in Havana harbor.” It would have been helpful to explain how the ship was destroyed, killing two officers and 264 crew members. Although a naval board denied any type of internal explosion and concluded the ship was destroyed by a mine placed below it, the board ignored the fact that other U.S. ships had experienced spontaneous combustion of coal in bunkers. The Navy had been warned that spontaneous coal fires could detonate nearby magazines. President William McKinley continued to insist that the Maine was destroyed by an exterior explosion. It is a good example how presidents have regularly deceived Congress and the public about the need for war. The book does not explain how often the Supreme Court expands presidential power in external affairs by relying on totally false assertions. A good example is United States v. Curtiss-Wright (1936). Yoo discusses that case, stating that the court made clear the president “is the sole organ of the nation in its external relations.” However, all the Court had to do in that case was uphold a delegation of statutory authority to President Franklin D. Roosevelt. Yet, the decision proceeded to add loads of dicta, even claiming that the president possesses “plenary and exclusive” authority in foreign affairs. That assertion can be rejected simply by looking at the text of the Constitution. As for the president being the “sole organ,” the Court relied on a speech by John Marshall in 1800 when he served in the House of Representatives. Marshall defended President John Adams for turning over to Great Britain a British subject charged with murder, but Marshall made no claim for plenary and exclusive presidential authority. Instead, Adams relied on explicit authority placed in the Jay Treaty. Decade after decade, scholars explained the defects in the sole organ doctrine. Finally, in the 2015 Zivotofsky case, the Supreme Court jettisoned that doctrine. Yoo correctly states that even though Congress passed the Gulf of Tonkin Resolution to support military action in Vietnam, the war provoked great political opposition. Part of the criticism, not discussed in the book, came from highly misleading

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statements by the Johnson administration to support escalation of the war. That presidential initiative did great damage to President Lyndon Johnson and the Democratic Party. Typically, the executive branch claims great expertise in matters of national security, but the record demonstrates that administrations regularly deceive members of Congress and the general public. The book does not mention the record of the Bush administration in 2002, offering six reasons why Saddam Hussein in Iraq possessed weapons of mass destruction. It was later learned that all six reasons were empty. There is great danger in automatically assuming that statements made by presidents and senior executive officials about national security are reliable. In the Introduction, Yoo says he has “consistently defended the presidential power, such as the right to wage war unilaterally, of George W. Bush, in whose administration I served, but of Barack Obama and Bill Clinton too.” However, President Bush sought and received statutory authority for military action against Iraq, a war that did great damage to the Middle East, President Bush, and the Republican Party. President Obama (in Libya) and President Clinton (in Bosnia and Kosovo) decided they did not need congressional authority for military initiatives. Instead, they could merely seek authority from the U.N. Security Council or NATO authorities. In their judgment, Congress had no role as an authorizing body for military action. Also in the Introduction, Yoo states that President Trump “claimed the unilateral right to build a wall along the Mexican border without congressional funding or authorization.” Yoo asserts that Congress rejected President Trump’s $5.7 billion border wall request. However, the record shows that, although Congress declined the full amount requested, it did appropriate $1.375 billion for wall construction. The Trump administration proceeded to take funds from the Defense Department, appropriated for other purposes, and transfer them as supplemental funds to build the wall. The dispute remained in the courts, with lower courts deciding that the spending power belongs to Congress, not the executive branch. However, on July 31, 2020, a 5-4 Supreme Court turned down a plea from opponents of the wall who had prevailed in district court and the Ninth Circuit. A year earlier,

the Supreme Court had placed a stay on their request, allowing the administration to spend DOD funds on the wall. In its July 31 action, the Court issued an unsigned statement consisting of seven words: “The motion to lift stay is denied.” There was no argument, evidence, or reasoning, and no understanding that the power of the purse belongs to Congress, not to the president. The Supreme Court seems to support the following argument offered by President Trump and executive officials: If someone decides to run for president, and during the campaign that individual pledges to build a wall along the Mexican border, and that person is elected president, that individual has a right to request from Congress a specific sum to satisfy the campaign promise. If Congress falls short of that request, the president has the right to take funds appropriated to other departments (such as the Pentagon) and use that money to fulfill a campaign promise. The power of the purse now shifts from Congress to the president. The last chapter focuses on efforts by Democrats to impeach and remove President Trump for withholding funds from Ukraine unless it agreed to find evidence damaging to the presidential aspirations of Joe Biden. For Yoo, the “haste” by which the House of Representatives pursued impeachment “doomed it.” In his judgment, both Congress and the Trump administration “staked out extreme constitutional positions from the start.” He concludes that “the type of conduct at issue involving President Trump and Ukraine could provide the grounds for impeachment.” He acknowledges that the Framers “openly worried about a president who might use his foreign affairs powers for personal or political gain.” Yoo does not argue that President Trump “deserved no blame for the Ukraine affair or that he might have had ulterior political motives in mind.” Unfortunately, heightened partisanship in the impeachment process prevented the two parties from agreeing that presidents may not withhold funds from foreign governments in order to improve their chances of reelection.  Louis Fisher is visiting scholar at the William and Mary Law School. He served four decades with the Library of Congress as senior specialist in separation of powers with the Congressional Research Service (1970-2006) and as specialist in constitutional law at the Law Library of Congress (2006-2010).

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The Year of Peril: America in 1942 By Tracy Campbell Yale University Press, New Haven, 2020 384 pages; $30

Reviewed by Henry S. Cohn

University of Kentucky Professor Tracy Campbell looks at the year 1942, the first full year of our participation in World War II, as it was experienced by the public. He does not impose upon his study future knowledge, such as the Allies winning the war. As the year played out, the country moved between moods of fear and occasional elation. Professor Campbell explains that, at the beginning of 1942, the Nazis controlled the European continent and— with their U-Boats—the Atlantic travel lanes. The U.S. public watched in distress as the Japanese swept through Singapore, Bataan, the Philippines, Malaya, Java, Borneo, and Wake Island. President Franklin Roosevelt said that United States must produce war goods to our “utmost capacity.” An encouraging incident occurred on April 18, when Jimmy Doolittle led a daring air raid on Tokyo. Roosevelt, asked about where Doolittle’s bombers had originated, gave a clever answer that became a classic: “They came from Shangri-La,” a reference to the James Hilton novel, Lost Horizon. At midyear, the direction of the war began to shift to the Allied side, with the slim victory at the battle of Coral Sea. On June 4, the United States decisively prevailed in the

Battle of Midway, destroying three Japanese warships that had been part of the Dec. 7, 1941, Pearl Harbor raid. Churchill met with Roosevelt at Hyde Park in June to begin planning for the North African invasion, known as Torch, while Russian troops were defeating the Germans at Stalingrad. The politics of 1942, according to Professor Campbell, were like a rollercoaster. After Pearl Harbor, as one would expect, Roosevelt enjoyed wide popularity. Even Wendell Willkie, Roosevelt’s Republican opponent in 1940, rallied to the president’s side and was appointed as a special envoy. By contrast, Alfred Landon and Herbert Hoover gave speeches calling Roosevelt a dictator and declaring his policies offensive to personal freedom. As the year progressed, Roosevelt proposed and Congress passed income taxes that were almost confiscatory, price controls, and gas rationing. The public began to question the need for such restrictions. They winced as they became unable to purchase a car or, because of a rubber shortage, even a new tire. The slow pace of the war also troubled many people. The outcome of the 1942 midterm November elections reflected these concerns. The Republicans made massive gains in both houses of Congress, and, although these victories were not enough to overturn Democratic control, they left the margin between the parties miniscule. In addition, Republicans Thomas Dewey and Earl Warren became governors of New York and California, and Clare Booth Luce began her career in Congress representing Connecticut’s Fairfield County. Due to the frustrations of war, the 1942 election featured the lowest percentage turnout for a House of Representatives election (33.9 percent) since 1926, a record low that continues to this day. Apart from including war news and political developments, Professor Campbell’s Year of Peril is not similar to Winston Churchill’s Hinge of Fate, his volume on the history of World War II that covers the same time period. Campbell, unlike Churchill, provides no maps or political or military memoranda. The bulk of the book is a social history, month by month, featuring the home-front lives of Americans during 1942. Campbell’s book has many lively details. Here are some examples. U.S. military forces were still segregated, causing Black soldiers to feel that they were second class citizens. Black Americans faced lynchings and bru-

tality, often without the perpetrators being brought to justice. Events of 1942 also put pressure on children, caused by their fears of war and receiving inadequate home care. Juvenile delinquency flourished as a result. Restrictions on abortions continued, leading to tragic deaths. Professor Campbell relates the death in February of a grandniece of the industrialist Andrew Carnegie from an unsafe abortion. On a happier note, in a New Haven hospital, penicillin was used successfully in treating a blood infection; this was the first time in U.S. history that the drug had been used. In the art world, Thomas Hart Benton created a series of paintings on the war, but they were not displayed because of their gruesomeness. (A series of paintings by Benton dating from 1932 is on display at the New Britain Museum of American Art.) Movies usually had a “win the war” theme. One of the most famous in 1942 was Mrs. Miniver, featuring a British family struggling to face the start of the war. The first commercial television program began in June 1942 on the DuMont Network. In sports, the Cardinals beat the Yankees in the World Series, four games to one, despite Joe DiMaggio’s efforts. Two famous commercials appeared in 1942. First, with women entering the workforce as never before, Westinghouse Corporation, to boost morale, commissioned a poster with the slogan “We Can Do It” that depicted a worker who was later named “Rosie the Riveter.” Second, with smoking so prevalent, R.J. Reynolds posted a billboard in Times Square with a soldier declaring, “I’d Walk a Mile for a Camel.” Today, members of historical societies are being asked to assemble information, videos, and photographs of occurrences from 2020, also a year of peril. For example, in Connecticut, a committee is writing a report on the state Supreme Court’s holding of remote arguments on video for the first time. Sometime in the future, historians will use this material to write a history similar to Professor Campbell’s thorough study of the events of 1942.  Judge Henry S. Cohn was appointed to the Connecticut Superior Court in 1997 and has been a judge trial referee since 2015. He has written a book on the Hartford, Conn., Circus Fire, published by Yale University Press, and has written numerous other pieces, including book reviews for The Federal Lawyer.

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Supreme Court Previews

The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at two cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.

Fulton v. City of Philadelphia (No. 19–123)

Oral argument: Nov. 4, 2020 Court below: U.S. Court of Appeals for the Third Circuit

Questions as Framed for the Court by the Parties (1) Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely that the government would allow the same conduct by someone who held different religious views—as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.

Facts Catholic Social Services (CSS) was established in 1797 in Philadelphia as a religious nonprofit foster care service. Although affiliated with the Archdiocese of Philadelphia, CSS is regulated both by the state of Pennsylvania and the city of Philadelphia. Once a child enters the city’s foster care system, the city assigns the child to one of the foster care agencies with whom the city contracts. CSS’s contract with the city specified that CSS (1) would be paid on a per diem basis for each child that it placed with foster parents; (2) would ensure that its foster parents were certified in accordance with state regulations; and (3) would not discriminate against anyone based on their race, color, religion, national origin, and

sexual orientation “in public accommodations” as specified by the city’s Fair Practices Ordinance. CSS, however, only certifies married or single foster parents and does not extend certification to unmarried cohabiting individuals. Because CSS believes that same-sex married couples are unmarried, it categorizes all same-sex married couples as cohabiting individuals who cannot be certified nor placed. In March 2018, the Philadelphia Inquirer (the Inquirer) reported that CSS and one other foster care agency would not work with same-sex married couples. The Inquirer also called the Department of Human Services (DHS) to report the issue. DHS inquired with the two agencies and confirmed the report. Two days after the Inquirer published its article, the City Council of Philadelphia ordered an investigation into DHS’s contracts with discriminatory social service agencies. Although DHS and CSS initially met to discuss the discriminatory issue, they did not reach a resolution. DHS followed up after the meeting to alert CSS that there would be an “intake freeze” during which the city would stop assigning incoming foster care children to CSS. However, DHS made exceptions whenever CSS was the best agency in a position to place a child. During their discussions, CSS argued to DHS that its policy of certifying and screening foster parents should not be evaluated as a “public accommodation” and that the city breached its contract by instituting an “intake freeze” on CSS. Further, CSS contended that the “intake freeze” was motivated by religious hostility against the organization. The city responded that the contract with CSS was not “formally suspended” and, in the alternative, that the contract did not re-

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quire the city to refer children to CSS; therefore, the “intake freeze” did not breach their contract. Furthermore, the city maintained that the foster care system is a category of “public accommodation” and therefore CSS had breached their contract by discriminating against same-sex married couples. Following this impasse, CSS, along with foster parent Sharonell Fulton and other foster parents, filed this case and moved for a preliminary injunction to force the city to end the “intake freeze” against CSS. The district court denied the preliminary injunction. CSS appealed, but the U.S. Court of Appeals for the Third Circuit affirmed the district court’s decision and upheld the city’s nondiscrimination policy. CSS then petitioned the Supreme Court for a writ of certiorari, which the Court granted on Feb. 24, 2020.

Legal Analysis The Government’s Ability to Regulate Contractors Petitioner CSS argues that the First Amendment’s Free Exercise Clause prevents the city from limiting religious organizations such as CSS from acting in accordance with their beliefs. CSS emphasizes that the Free Exercise clause prevents the city from imposing “disabilities,” or exclusionary actions, on CSS due to its religious beliefs, including in the contexts of marriage and child-rearing. CSS contends that its role as an independent private contractor means that the city cannot compel CSS to follow a particular ideology regarding LGBT+ families. CSS further argues that its history of providing private foster care—“long before” regulation by the city—further underscores its status as a private actor not bound by governmental speech or religious restrictions. Respondent Philadelphia responds that, while the Free Exercise Clause forbids the government from restricting private religion and speech, the city has significantly broader powers in its capacity as a manager of contractors than as a “sovereign.” The city contends that in the managerial context, exempting religious objectors from government policies and laws would severely

impair the government’s ability to function. Furthermore, the city asserts that when CSS chooses to contract as a foster care agency, it acts not as a private citizen, but as a government employee as an agent with “official capacities.” Thus, the city argues that CSS is bound to act in accordance with government regulations on non-discrimination, including refraining from placing children in foster care “in a manner the city has deemed contrary to the interests of its residents and children.”

General Applicability of the Nondiscrimination Policy CSS contends that the city’s nondiscrimination policy also violates the Free Exercise Clause because it is neither generally applicable nor neutral. First, CSS argues that the city’s nondiscrimination policy is “specifically directed” at CSS with the aim of thwarting CSS’s religious beliefs and is therefore impermissible regardless of any compelling interest on the part of the city. In particular, CSS maintains that the nondiscrimination policy is not neutral because the city has shifted between various policies that target CSS’s choice to exclude LGBT+ individuals from foster care eligibility. Second, CSS asserts that the nondiscrimination policy is not generally applicable because the policy includes waivers and exemptions that the city can offer at its discretion whenever a foster agency seeks to refuse potential parents for reasons including marital status, familial status, and disability. CSS, however, argues that the city stated that CSS would not be granted exemptions, thus underscoring that the nondiscrimination policy is not generally applicable but targets religiously-motivated conduct instead. Finally, CSS contends that, given the “severe” lack of neutrality in the city’s policy, the Supreme Court should apply strict scrutiny to the city’s purported interest in preventing discrimination. CSS maintains that the city’s stated interest is not compelling because it is riddled with exemptions and, further, “broad nondiscrimination statements” do not justify punishing a private agency for its religious convictions concerning marriage. In response, the city asserts that the nondiscrimination policy is both neutral and generally applicable. First, the city contends that the nondiscrimination policy is neutral because it does not distinguish based on religion, nor does it target CSS “because of ” the agency’s religious beliefs. The city argues

that CSS relies on out-of-context statements made by government officials to claim that the city targeted CSS; yet in actuality, the non-discrimination policy applies equally to every foster care agency. Second, the city explains that the nondiscrimination policy is generally applicable because it “categorically prohibits discrimination,” whether religious or secular in nature, and is present in every contract with every agency. In particular, the city addresses the exemption issue by arguing that the Fair Practice Ordinance categorically bars exemptions on the basis of discrimination anyway. Similarly, the city acknowledges that some foster care providers have specializations but maintains that those specializations do not rise to the level of discrimination. Furthermore, the city contends that the nondiscrimination policy satisfies strict scrutiny because the city has a compelling interest in prohibiting discrimination among its foster care providers. The city asserts that its nondiscrimination policy ensures that the law will treat potential LGBT+ foster parents equally to heterosexual parents and increases the pool of potential foster parents regardless of sexual orientation.

Discussion Consequences for Foster Children A group of former foster children, foster parents, and the Catholic Association Foundation, in support of CSS, argue that CSS has always acted in the best interest of children because the organization is “child-centered” in its approach to placing children with foster parents. Moreover, Nebraska, Arizona, and Ohio, also in support of CSS, contend that the steady increase of children in the foster care system—with nearly half a million children currently needing care—requires religious organizations like CSS to continue placing children with foster parents, lest the foster care system become overwhelmed. Nebraska, Arizona, and Ohio argue that the ideological diversity of foster care agencies serves children more effectively because different agencies can use their “expertise [to] target different audiences for their recruiting efforts.” Similarly, James and Gail Blais and the General Conference of Seventh-Day Adventists (The Seventh-Day Adventists et al.) assert that Christian families are more likely to adopt children but would hesitate to do so if the only options available were government agencies that propagate policies different from their Christian beliefs. The

Seventh-Day Adventists et al. conclude that the loss of faith-based agencies will ultimately deny children the possibility of finding a foster family. Scholars of the Constitutional Rights and Interests of Children (SCRIC), in support of the city, argue that permitting CSS to discriminate against same-sex married couples would allow CSS to violate its obligation to place foster children in homes that offer “permanence, stability, and security.” Specifically, SCRIC contends that when CSS excludes same-sex couples from the pool of potential foster parents, children lose access to quality homes. SRIC points out that the biggest impact of this exclusion will be experienced by children who have “special needs” or who are LGBT+. Additionally, SCRIC explains that same-sex couples help to alleviate the steady increase of children within the nation’s foster care system, as such couples are “seven times more likely to foster children and to adopt children than their different-sex counterparts.”

Discrimination Against Different Groups The Institute for Faith and Family and the International Conference of Evangelical Chaplain Endorsers (IFF and ICECE), in support of CSS, argue that the city is fostering an environment of “intolerance, uniformity, exclusion, and inequality” by demanding that CSS change its position on placing children with same-sex couples. IFF and ICECE assert that forcing CSS to change its stance on same-sex foster placement weakens diversity by excluding religious organizations from the public sphere. Moreover, IFF and ICECE warn that silencing CSS’s religious beliefs would weaken the diverse “freedom of thought” that plays a key role in maintaining a healthy American democracy. The Voice for Adoption and other child welfare organizations, in support of the city, counter that allowing religious agencies to discriminate against same-sex couples creates an environment that leaves prospective foster families as outcasts, thereby reinforcing a misperception that LGBT+ couples are not allowed to foster at all. Alternatively, SCRIC contends that allowing CSS to continue using their policy would open the doors to discrimination on the basis of sex or sexual orientation, since “if one member of the same-sex couple were a different sex,” CSS would certify them as foster parents. The American Bar Association (ABA) also warns that expanding religious-liberty

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exceptions to public accommodation laws could have a double-edged effect of hurting religious organizations because individuals could invoke a religious command to oppose other religions. For example, the ABA argues that organizations could invoke religious liberty to discriminate against Muslim, Jewish, or Christian couples just as they could against LGBT+ couples. Written by Rachel Skene and Marisa PagánFigueroa. Edited by Phil Duggan.

Full text available at https://www.law. cornell.edu/supct/cert/19-123. 

California v. Texas (No. 19-840)

Oral argument: Nov. 10, 2020 Court below: U.S. Court of Appeals for the Fifth Circuit

Questions as Framed for the Court by the Parties (1) Whether the individual and state plaintiffs in this case have established Article III standing to challenge the minimum-coverage provision in Section 5000A(a) of the Patient Protection and Affordable Care Act (ACA); (2) whether reducing the amount specified in Section 5000A(c) to zero rendered the minimum-coverage provision unconstitutional; and (3) if so, whether the minimum-coverage provision is severable from the rest of the ACA.

Facts In March 2010, President Obama signed the Affordable Care Act (ACA) into law. The ACA’s proponents hoped to expand healthcare coverage while offsetting the costs of rising health insurance premiums. Immediately after it was enacted, opponents of the ACA attacked its legitimacy through both litigation and congressional amendments. The controversy centered on a provision of the ACA known as the “individual mandate,” which required that uninsured persons purchase government healthcare or face a penalty. In 2012, the U.S. Supreme Court affirmed the constitutionality of the individual mandate in Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB) under the Constitution’s Article I, Section 8 Taxing and Spending Clause. The Court’s decision was nevertheless met with controversy. In December 2017, President Trump signed into law the Tax Cuts and Jobs Act (TCJA). The TCJA included a provision that lowered the ACA’s penalty for non-compliance with the individual mandate to zero. With the individual mandate set to zero,

the ACA’s opponents questioned whether the individual mandate was still constitutional under Congress’s Taxing Power. In February 2018, Texas, along with 18 other states (Texas), as well as two private citizens, Neill Hurley and John Nantz (the individuals), brought this case to the U.S. District Court for the Northern District of Texas against several federal defendants (the federal government). There, Texas and the individuals claimed that the individual mandate was no longer constitutional under Congress’s Taxing Power because the ACA no longer generated revenue. Additionally, the plaintiffs argued that because the individual mandate was “essential to and inseverable from the rest of the ACA,” the entire ACA must be struck down. The federal defendants agreed with the plaintiffs but maintained that only the individual mandate and the ACA’s guaranteed-issue and community-rating requirements needed to be severed. Because the federal defendants did not completely defend the ACA, California and fifteen other states intervened to protect the entire ACA. Eventually, after finding that the plaintiffs had standing to bring the claim, the district court agreed with the plaintiffs on both of their claims. On appeal, the House of Representatives (the House) and four additional states successfully intervened to join California in defending the ACA. They petitioned the U.S. Court of Appeals for the Fifth Circuit that the entire ACA, rather than the three provisions previously articulated in their litigation position at the district court, was inseverable. The petitioners asked the Fifth Circuit to review the district court’s decision and decide whether the severance of the individual mandate provision from the rest of the ACA rendered the entire act unconstitutional. The Fifth Circuit affirmed the district court’s opinion on the constitutionality of the individual mandate but remanded to the district court on the severability question because it found that its analysis was incomplete. On March 2, 2020, the U.S. Supreme Court granted certiorari to hear this case.

Legal Analysis Is the Individual Mandate Constitutional Even Though the Penalty for Noncompliance Is Zero Dollars? Petitioners from California and the House argue that enacting the amended individual mandate was within Congress’s constitutional powers. California and the

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House state that the appropriate construction of the amended individual mandate is not a command but rather a choice: either buy health insurance or pay a penalty of zero dollars. After concluding the amended individual mandate is still a choice, California and the House then assert that Congress did not exceed its constitutional powers by changing the choice’s terms. First, California and the House argue that the amended individual mandate was within Congress’s taxing power because it is just a tax whose application has been suspended. As evidence, California states that the amended individual mandate is still located in the Internal Revenue Code, only applies to individuals with a certain household income, and retains a structure Congress could use for future taxpayers to pay a tax. California and the House further argue that part of Congress’s Taxing Power is the power to reduce the amount of that tax to zero. Second, California and the House argue that since the amended individual mandate merely encourages people to buy health insurance, Congress has power to enact the law as a precatory provision. Respondents the individuals and Texas argue the individual mandate is not a choice, but an unconstitutional command to buy health insurance. They contend that in NFIB, the Court established there were two interpretations of the individual mandate: an unconstitutional command to buy health insurance or a tax on those who choose not to buy insurance. The individuals and Texas reason that since the provision can no longer be interpreted to be a tax, it must be interpreted as an unconstitutional command. Accordingly, the individuals and Texas then argue that the individual mandate can no longer be interpreted to be a tax. Specifically, they contend that, essential to the Supreme Court’s holding in NFIB, the individual mandate was a proper use of Congress’s Taxing Power and that the individual mandate generated revenue. Therefore, the individuals and Texas contend that since the amended individual mandate no longer raises revenue, it is no longer a tax.

If Amended § 5000a Is Unconstitutional, Is It Severable From the ACA? California and the House contend that the amended individual mandate is severable from the rest of the ACA. They argue that Congress intended for it to be severable be-

cause Congress made the individual mandate effectively meaningless while leaving the rest of the ACA untouched. Thus, California and the House reason that Congress would have altered other portions of the ACA if it felt the ACA could not function without the individual mandate. California and the House further argue that even if direct evidence of Congress’s intent did not exist, the individual mandate is severable under the Court’s severability test set forth in United States v. Booker. California and the House contend that Booker established a three part inquiry under which the Court “retain[s] those portions of the Act that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress’s basic objectives in enacting the statute.” Here, California and the House argue that the remaining provisions can operate effectively and consistently with Congress’s purpose without the individual mandate. As evidence, California and the House point out that since 2017— when Congress rendered the individual mandate ineffective—the guaranteed issue and community rating provisions continued to operate effectively. The individuals and Texas counter that the amended individual mandate is not severable from the rest of the ACA. First, the individuals and Texas argue that Congress did not intend for the individual mandate to be severable from the guaranteed-issue and community-based rating provisions of the ACA because § 18901 is effectively an “inseverability clause.” The individuals and Texas note that § 18901 states that Congress requires individuals to buy health insurance because it is “essential to creating effective health insurance markets in which health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” Therefore, the individuals and Texas conclude Congress believed the individual mandate, which requires individuals to have adequate health insurance, could not be severed from these two provisions. Second, the individuals and Texas argue that the amended individual mandate is not severable from the remainder of the ACA because the remaining provisions serve to further the individual mandate’s purpose of expanding the number of Americans with healthcare. Thus, the individuals and Texas reason Congress would not have adopted them independently of the individual mandate.

Discussion Balancing Access to Healthcare Services and Economic Liberty to Purchase Healthcare In support of California, America’s Health Insurance Plans (AHIP) assert that a complete or partial repeal of the ACA would devastate the millions of Americans who rely on it for insurance coverage. AHIP contends that the ACA dramatically reshaped the insurance market by extending Medicaid and providing additional assistance to lower-income adults, triggering the enactment of state legislation expanding or supplementing its provisions, and supplying benefits that saved rural hospitals from rising premiums. Moreover, the AHIP highlights that the ACA has expanded coverage to nearly 80% of customers participating in individual healthcare markets, and a complete or partial repeal would be devastating for those persons and institutions that have come to depend on it for vital healthcare needs. Texas counters that the ACA should be completely repealed because it has debilitated regional economies by leveling costly Medicaid expenditures on states while undercutting the freedom to choose personalized healthcare options. Texas contests that the result of this has negatively impacted consumers, regional economies, and insurance companies from offering greater diversity in the market. Texas maintains that before the ACA’s adoption, states had significant flexibility to tailor a wide array of insurance choices customized to local population needs. Now, Texas argues that states have less liberty because the ACA’s minimum coverage requirement has frightened away insurers and decreased the offerings of those who remained. Texas further asserts that the ACA has required states to spend millions of dollars on mandatory insurance and other benefits for individuals who would not otherwise need or purchase insurance without the individual mandate.

Failure to Raise Revenue as a Matter of Tax Policy A bipartisan group of economic scholars (Bipartisan Economic Scholars), in support of California, explain that the individual mandate could be self-sustaining without reliance on the penalty tax provision. The Bipartisan Economic Scholars argue that, by 2019, demand for being included in insurance pools was not limited to those patients with preexisting conditions who would be

expected to purchase healthcare regardless of any attached penalty. In fact, Bipartisan Economic Scholars maintain that individual state exchanges were operating well on their own, supported by other means such as federal subsidies, which substituted for the penalty to drive the insurance market. The Center for Constitutional Jurisprudence (Constitutional Jurisprudence), in support of Texas, counters that because of the Tax Cuts and Jobs Act, the federal government no longer has the ability to generate revenue through the individual mandate. Constitutional Jurisprudence maintains that because the individual mandate lacks a revenue-generating feature, the defining feature of a tax has been gutted from the mandate. Constitutional Jurisprudence maintains that Congress’s Taxing Power would be significantly magnified if any law that is marginally related to a tax is constitutional, even though it does not have the defining features of a tax. Written by Paul Ingrassia and Stewart Rickert. Edited by Joseph Grosser.

Full text available at http://www.law. cornell.edu/supct/cert/19-840. 

U.S. Fish and Wildlife Service v. Sierra Club (No. 19-547)

Oral argument: Nov. 2, 2020 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to determine whether the deliberative process privilege under Exemption 5 of the Freedom of Information Act protects interagency draft documents. The documents in question are draft biological jeopardy opinions produced by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service pursuant to Section 7 of the Endangered Species Act during an environmental consultation with the Environmental Protection Agency regarding a proposed agency regulation. Sierra Club contends that the requested documents do not fall within the scope of the deliberative process privilege exemption because the jeopardy decision within the draft opinion was final, not tentative, and the documents shaped later agency decisions by requiring the Environmental Protection Agency to discontinue, modify, or seek an exemption for its proposed action. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service argue that the requested documents fall within the scope of the deliberative process privilege exemption because

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the exemption aims to encourage effective governmental decision-making and must protect inter-agency documents and memoranda that have not been adopted as final to further this goal. By granting certiorari in this case, the Supreme Court will determine the extent to which government agencies can invoke the deliberative process privilege and the correlative scope of the public’s right of access to information under the Freedom of Information Act. Full text available at https://www.law. cornell.edu/supct/cert/19-547. 

Salinas v. United States Railroad Retirement Board (No. 19-199) Oral argument: Nov. 2, 2020 Court below: U.S. Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to interpret the judicial review provision of the Railroad Unemployment Insurance Act, and to determine whether the statute provides for broad review of agency decisions, such as decisions to reopen or deny a reopening of past outcomes through the “any final decision” language of Section 355(f ). Manfredo Salinas argues that the Supreme Court should construe the Railroad Unemployment Insurance Act’s provision broadly to permit judicial review of a United States Railroad Retirement Board decision not to backdate disability benefits. The United States Railroad Retirement Board counters that the statute grants the United States Railroad Retirement Board broad internal review and limits judicial review only to those decisions encompassed by the express language of the surrounding statutory framework. This case has important implications on the finality and reviewability of decisions that impact the duration and dollar amount of federally funded annuities. Full text available at https://www.law. cornell.edu/supct/cert/19-199. 

Court’s Eighth Amendment jurisprudence on cruel and unusual punishment categorically prohibits a life sentence without parole for a juvenile offender who is not permanently incorrigible and requires courts to make a factual finding on incorrigibility. Mississippi counters that the Eighth Amendment imposes no such requirement, claiming that the Supreme Court’s Eighth Amendment jurisprudence forbids states only from imposing mandatory life without parole sentences on juvenile offenders. The outcome of this case has significant policy implications because it raises concerns of federalism, transparency in sentencing procedures, and impact on victims. Full text available at https://www.law. cornell.edu/supct/cert/18-1259. 

Borden v. United States (No. 19-5410)

Oral argument: Nov. 3, 2020 Court below: U.S. Court of Appeals for the Sixth Circuit

This case asks the Supreme Court to determine whether a “violent felony” under the Armed Career Criminal Act of 1984 includes crimes in which an individual used force recklessly. Charles Borden asserts that the U.S. Court of Appeals for the Sixth Circuit incorrectly held that committing a crime with a mens rea of recklessness constitutes a violent felony because the mental state of recklessness does not include the intention or knowledge that would satisfy the requirement of using force “against the person of another.” The United States counters that a mens rea of recklessness satisfies the element because the focus is on the “use” of the physical force, which does not discern between mental states. The outcome of this case has important implications for criminal procedure, due process rights, and the necessary interpretation of the text of the ACCA. Full text available at https://www.law. cornell.edu/supct/cert/19-5410. 

Jones v. Mississippi (No. 18-1259)

Niz-Chavez v. Barr (No. 19-863)

This case asks the Supreme Court to decide whether a state may impose a sentence of life without parole on a juvenile who is found guilty of murder without first finding that the juvenile is permanently incorrigible. Brett Jones contends that the Supreme

A notice to appear in accordance with 8 U.S.C. § 1229(a) triggers a stop-time rule that prevents noncitizens from accruing uninterrupted time spent in the United States— ten years of which makes a noncitizen eligible to cancel removal. The issue presented to

Oral argument: Nov. 3, 2020 Court below: Mississippi Court of Appeals

Oral argument: Nov. 9, 2020 Court below: U.S. Court of Appeals for the Sixth Circuit

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the Supreme Court is whether the information required for a notice to appear must be included in a single document or whether it may be included in multiple documents. Agusto Niz-Chavez argues that the text and purpose of Section 1229(a) indicates that the required information must be included in a single notice and that the Court should not defer to the Board of Immigration Appeal’s (Board) interpretation of the statute. In contrast, the attorney general argues that the text and purpose of Section 1229(a) permits the government to issue notices to noncitizens across multiple documents and the Court should grant the Board deference. The outcome of this case has important implications for the procedural due process rights of immigrants subject to removal proceedings and the administrative burden of those proceedings on immigration courts and other government agencies. Full text available at https://www.law. cornell.edu/supct/cert/19-863. 

Brownback v. King (19-546) Oral argument: Nov. 9, 2020 Court below: U.S. Court of Appeals for the Sixth Circuit

This case asks the Supreme Court to decide whether a judgment against the plaintiff on a Federal Tort Claims Act (FTCA) claim, alleging violations under state tort law, bars the plaintiff from pursuing a constitutional remedy under Bivens. Douglas Brownback contends that the district court’s dismissal of James King’s FTCA claims on the basis of his failure to establish the elements of Section 1346(b) constitutes a final judgment on the merits of all claims pertaining to the same subject matter. Brownback argues that consistent with the purpose of the statute, Section 2676 of the FTCA bars King from pursuing his Bivens action. King counters that the judgment bar should be interpreted to incorporate the doctrine of res judicata, which precludes subsequent claims only if a court with jurisdiction has entered a judgment on the merits. King argues that since no such jurisdiction exists over the claims in this case, his Bivens action should not be barred. The outcome of this case has significant implications for plaintiffs’ access to courts and the avenues for relief plaintiffs may pursue to hold government officials accountable for state tort and constitutional violations. Full text available at https://www.law. cornell.edu/supct/cert/19-546. 

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Sections & Divisions

FBA SECTIONS & DIVISIONS COUNCIL On Dec. 8, 2020, the FBA Sections & Divisions Council formally voted to change the name of the LGBT Law Section to the LGBTQ+ Law Section. This change reflects the section’s efforts to promote diversity

and inclusion within its member ranks and to signal to the rest of the FBA and external parties the importance of showing support and solidarity for those who do not fall within or identify with LGBT. This change also aligns our section with an overall trend in the United States of including Q+ in official organization designations. The LGBTQ+

Law Section is proud to be a voice for all its members, wherever they identify on the LGBTQ+ spectrum, and we look forward to continuing the critical work of advancing diversity, inclusion, and LGBTQ+ legal rights through our programming, outreach, and engagement. 

Friend Us. Follow Us. Join Us. www.fedbar.org 82 • THE FEDERAL LAWYER • January/February 2021

Federal Bar Association Application for Membership The Federal Bar Association offers unmatched opportunities and services to enhance your connections to the judiciary, the legal profession, and your local legal community. Our mission is to strengthen the federal legal system and administration of justice by serving the interests and the needs of public and private federal practitioners, the federal judiciary, and the public they serve.

Leadership

Advocacy The opportunity to make a change and improve the federal legal system through grassroots work in over 100 FBA chapters and a strong national advocacy.

Learning

Help shape the FBAâ€™s future and make an impact on the growth of the federal legal community by serving in FBA governance positions.

Learn from the experts at our many Continuing Legal Education programs offered throughout the year - at both the national and chapter levels.

Networking

Connect with a vast network of federal practitioners and judges extending across all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.

The FBA - for your career; for a lifetime THREE WAYS TO APPLY TODAY: Online at www.fedbar.org; by fax (571) 481-9090; or by mail: FBA, PO Box 79395, Baltimore, MD 21279-0395. Questions? Contact the membership department at (571) 481-9100 or membership@fedbar.org. Applicant Information (Please print legibly and complete both sides of the application)

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Authorization Statement By signing this application, I hereby apply for membership in the Federal Bar Association and agree to conform to its Constitution and Bylaws and to the rules and regulations prescribed by its Board of Directors. I declare that the information contained herein is true and complete. I understand that any false statements made on this application will lead to rejection of my application or the immediate termination of my membership. I also understand that by providing my fax number and e-mail address, I hereby consent to receive faxes and e-mail messages sent by or on behalf of the Federal Bar Association, the Foundation of the Federal Bar Association, and the Federal Bar Building Corporation.

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(Signature must be included for membership to be activated) *Contributions and dues to the FBA may be deductible by members under provisions of the IRS Code, such as an ordinary and necessary business expense, except 4.5 percent which is used for congressional lobbying and is not deductible. Your FBA dues include $15 for a yearly subscription to the FBAâ€™s professional magazine.

www.fedbar.org

Membership Categories / Professional Chapter Affiliations / Sections and Divisions National Membership Levels

Professional Chapter Affiliation

Sustaining Membership

FBA membership includes one professional chapter membership. Any local chapter dues are indicated next to the chapter name. If no chapter is selected, you will be assigned a chapter based on geographic location. *No chapter currently located in this state or location.

Members of the association distinguish themselves when becoming sustaining members of the FBA. Sixty dollars of the sustaining dues are used to support educational programs and publications of the FBA. Sustaining members receive a 5 percent discount on the registration fees for all national meetings and national CLE events. Private Sector Member Admitted to Practice 0-5 Years..............................m $170 Member Admitted to Practice 6-10 Years ...........................m $235 Member Admitted to Practice 11+ Years ............................m $285 Retired (Fully Retired from the Practice of Law) .................m $170

Public Sector m $150 m $215 m $245 m $170

Active Membership Open to any person admitted to the practice of law before a federal court or a court of record in any of the several states, commonwealths, territories, or possessions of the United States or in the District of Columbia. Private Sector Member Admitted to Practice 0-5 Years..............................m $110 Member Admitted to Practice 6-10 Years ...........................m $170 Member Admitted to Practice 11+ Years ............................m $215 Retired (Fully Retired from the Practice of Law) .................m $110

Public Sector m $85 m $145 m $175 m $110

*Clerk of Court of a Federal or tribal court who is admitted to the practice of law

Associate Membership Clerk of Court Associate Clerk of a Federal or tribal court who is not admitted to the practice of law ..... $0 Foreign Associate Admitted to practice law outside the U.S. ........................................................ m $215 Law School Associate Faculty Advisor of Law School Student Chapter .............................................. m $0 First year student (includes four years of membership)* .............................. m $50 Second year student (includes three years of membership)*........................ m $30 Third year student (includes two years of membership)*............................... m $20 One year only option ......................................................................................... m $20 *These law student associate memberships include an additional year of FBA membership upon graduation.

National Membership Dues Total: $ __________ Sections - optional communities by Practice Area m Admiralty Law ..............................$25

m Indian Law ...................................$15

m Alternative Dispute Resolution ..$15 m Antitrust and Trade Regulation... $15

m Intellectual Property Law.............$15

m Banking Law ................................$20

m Labor and Employment Law ......$15 m LGBTQ+ LGBT Law.....................................$15 Law Section m Qui Tam Section..........................$15 m Securities Law Section .................$0 m Social Security.............................$10 m State and Local Government Relations......................................$15 m Taxation .......................................$15 m Transportation and Transportation Security Law ......$20 m Veterans and Military Law..........$20

m Bankruptcy Law...........................$25 m Civil Rights Law ...........................$15 m Criminal Law................................$10 m Environment, Energy, and Natural Resources ......................$15 m Federal Litigation ........................$20 m Government Contracts................$20 m Health Law...................................$15 m Immigration Law .........................$10

m International Law ........................$15

Divisions - optional communities by Career interest m Corporate & Association Counsel (in-house counsel; corporate practice) ..... $20 m Federal Career Service (past/present federal government employee............ N/C m Judiciary (past/present member or staff of a judiciary) ................................ N/C m Law Student Division ........................................................................................ N/C m Younger Lawyers* (age 40 or younger or admitted less than 10 years) ...... N/C m Senior Lawyers* (age 55 or over) .................................................................... $10 *For eligibility, date of birth must be provided.

Sections and Divisions Dues Total: $ __________

Alabama m Birmingham m Montgomery m North Alabama Alaska m Alaska Arizona m Phoenix m William D. Browning/ Tucson Arkansas m Arkansas California m Inland Empire m Los Angeles m Northern District of California m Orange County m Sacramento m San Diego m San Joaquin Valley Colorado m Colorado Connecticut m District of Connecticut Delaware m Delaware District of Columbia m Capitol Hill m D.C. m Pentagon Florida m Broward County m Jacksonville m North Central Florida–$25 m Orlando m Palm Beach County m South Florida m Southwest Florida m Tallahassee m Tampa Bay Georgia m Atlanta–$10 m Southern District of Georgia Chapter Hawaii m Hawaii Idaho m Idaho

Illinois m Central District of Illinois m Chicago m P. Michael Mahoney (Rockford, Illinois) Chapter m Southern District of Illinois Indiana m Indianapolis m Northern District of Indiana Iowa m Iowa–$10 Kansas m Kansas and Western District of Missouri Kentucky m Kentucky Louisiana m Baton Rouge m Central Louisiana m Lafayette/ Acadiana m New Orleans–$10 m North Louisiana Maine m Maine Maryland m Maryland Massachusetts m Massachusetts –$10 Michigan m Eastern District of Michigan m Western District of Michigan Minnesota m Minnesota Mississippi m Mississippi Missouri m St. Louis m Kansas and Western District of Missouri Montana m Montana Nebraska m Nebraska

Nevada m Nevada New Hampshire m New Hampshire–$10 New Jersey m New Jersey New Mexico m New Mexico New York m Eastern District of New York m Southern District of New York m Western District of New York North Carolina m Eastern District of North Carolina m Middle District of North Carolina m Western District of North Carolina North Dakota m North Dakota Ohio m Cincinnati/ Northern Kentucky-John W. Peck m Columbus m Dayton m Northern District of Ohio–$10 Oklahoma m Oklahoma City m Northern/ Eastern Oklahoma Oregon m Oregon Pennsylvania m Eastern District of Pennsylvania m Middle District of Pennsylvania m Western District of Pennsylvania

Puerto Rico m Hon. Raymond L. Acosta/ Puerto Rico–$10 Rhode Island m Rhode Island South Carolina m South Carolina South Dakota m South Dakota Tennessee m Chattanooga m Knoxville Chapter m Memphis Mid-South m Nashville m Northeast Tennessee Texas m Austin m Dallas–$10 m El Paso m Fort Worth m San Antonio m Southern District of Texas–$25 m Waco Utah m Utah Vermont m Vermont Virgin Islands m Virgin Islands Virginia m Northern Virginia m Richmond m Roanoke m Hampton Roads Chapter Washington* m At Large West Virginia m Northern District of West Virginia–$20 Wisconsin m Wisconsin Wyoming m Wyoming

Professional Chapter Dues Total: $ ____

Payment Information TOTAL DUES TO BE CHARGED (Membership, Section/Division, and Chapter dues): $_________________ m American Express m MasterCard m Visa m Check made payable to Federal Bar Association - check no. ________________ Name on card (print) Card No.

Exp.

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Chapter Exchange

Idaho Chapter: Alyson Foster, Dempsey Foster, Idaho Chapter, FBA President (standing to the right of Santa); Angie Hough, Association of Legal Administrators (standing to the left of Mrs. Claus).

NINTH CIRCUIT Idaho Chapter

Toy Brigade and Idaho’s Spirit of Giving For the past four years, the Idaho Chapter of the FBA has partnered with the Boise Firefighters Ladder #149 to make the holidays brighter for children in need and youngsters who are ill or homeless. Our Toy Brigade collected toys, clothing, and cash donations for families staying at Ronald McDonald House of Boise, Children’s Hospital at St. Luke’s Downtown, Children’s Hospital at St. Alphonsus, and the Women and Children’s Shelter at the Boise Rescue Mission. After collecting the gifts of the season, Santa and Mrs. Claus, along with the Boise firefighters, would board a very special fire engine and, with great joy and fanfare make our way through town. With horns tooting to announce our arrival, we delivered toys, books, and stuffed animals to delighted

children throughout the valley. But in 2020—in the middle of the pandemic—we weren’t certain if the Toy Brigade would happen. Our community, like communities across the nation, has had to adjust to the realities of COVID. For most of us, travel plans, family reunions, and office parties would be put on hold this year. Christmas, itself, would be a low-key event. Yet, the Boise Rescue Mission had identified 56 children in Boise for whom there would be no celebration or presents without the help of the Toy Brigade. Those families are struggling to put food on the table, heat their homes, or keep fuel in their cars (in which several are living). For them, Christmas would be just another day. Therefore, when Craig Martin, Firefighters Ladder #149, asked if our chapter would once again partner with them, Chapter President Alyson Foster didn’t hesitate. The

Rescue Mission provided a list of each child’s clothing size and “wish list” for Santa. And just like that, our chapter’s 2020 Toy Brigade officially began! In our closely knit legal community, word travels fast. In short order, we began hearing from individual attorneys and other organizations, including Gem State Association of Legal Administrators; St. Mary’s Catholic School; Tina Richards Real Estate; the planned community of Hidden Springs; several law firms, including Elam Burke, Duke Evett, and Manweiler Breen Ball & Davis; small business owners; and Kolee’s, a local hair salon. The law firm of Parsons Behle & Latimer became the staging area for the collections, as toys, books, clothing, and other donations began pouring in. For weeks, shareholders could be seen stepping around boxes lined up in the hallways. More gifts arrived daily.

January/February 2021 • THE FEDERAL LAWYER • 85

Idaho Chapter: Santa’s Elves: Kristen, Cooper, and Jason Ellis (a Boise Firefighter); Matt Lutz, Boise Firefighter; Tina Richards, Real Estate; Members of Parsons Behle & Latimer (Jake Davis and Cathy Pontak); (front right) Angie Hough, Kristin Middleton, and Savanah Beck.

The 2020 Toy Brigade had to be different this year, and yet, it was just as meaningful. Even though we couldn’t visit the hospitals or hand out toys personally, the Spirit of Christmas was alive and well. While I write this, I can’t help but smile at the thought of those children opening their gifts on

Christmas morning—happily tearing away the wrapping paper to find exactly what they hoped for but never imagined they would receive—from bicycles to XBoxes, Barbies and books, baseball gloves and horseback riding lessons, warm jackets and fleece hoodies—all provided by gracious members and friends. Thanks to the generosity of our FBA members, the Boise Firefighters, and so many others of our community, Christmas wasn’t just another day. It was truly special, a day of happy memories and joy. 

FOURTH CIRCUIT San Antonio Chapter

On Sept. 9, 2020, the San Antonio Chapter of the FBA (SA-FBA) held a POWER Act (the Pro Bono Work to Empower and Represent Act of 2018) Panel Discussion via Zoom. The POWER Act mandates that the chief judge of a district, or his or her designee, shall lead at least one public event in partnership with volunteer lawyer projects to promote pro bono legal services to empower survivors of domestic violence, dating violence, sexual assault, and stalking. The 86 • THE FEDERAL LAWYER • January/February 2021

discussion held via Zoom was designed to inform and engage members of the bar in assisting those survivors and provide practical resources to practitioners. The program was particularly timely given the alarming surge in domestic violence related issues within the community during the pandemic. The discussion was moderated by U.S. Magistrate Judge Elizabeth S. (Betsy) Chestney of U.S. District Court for the Western District of Texas. Panelists who participated in the discussion included: • H on. Monique Diaz of the 150th Judicial District Court, Bexar County, Tex. and co-chair of the Collaborative Commission on Domestic Violence; • Kat McColley Doucette, staff attorney at San Antonio Legal Services Association (SALSA); • Allison Martinez, interim CEO of Child Advocates of San Antonio; • Erin Martison, staff attorney at Texas RioGrande Legal Aid (TRLA) and manager of the Bexar County Pro Bono Protective Order Project; and • Marta Paláez, CEO of Family Violence Prevention Services, Inc.

SIXTH CIRCUIT

Northern District of Ohio Chapter

Northern District of Ohio Chapter: Students participated in a Kahoot trivia game answering questions about the Bill of Rights.

During an hour-long program, the panelists and moderator educated local practitioners within the SA-FBA on practical ways to utilize their resources to assist vulnerable members of the community. Over 120 participants joined the discussion and, with a donation from the SA-FBA, $500 was raised to support the panelists’ organizations, with $250 donated to SALSA and $250 donated to TRLA. Following the discussion, the Western District of Texas donated an additional $5,000 on behalf of the SA-FBA to these valuable organizations to support their missions within the community. The SA-FBA is grateful to its members for their participation and donations and to the Western District of Texas for its generous donation on the SA-FBA’s behalf to support these great organizations. 

Message From the South Carolina Chapter Dear Chapter President: 2020 has, without a doubt, brought many difficult challenges. Now, our South Carolina Chapter is issuing an additional challenge to every chapter. Because of chronic poverty, or because of situational poverty resulting from the unique issues brought to bear by

the COVID-19 pandemic, many people are hungry and food banks across the nation are suffering. Thus, the South Carolina Chapter, and its members, will be donating a minimum of $5,500 to local food banks, just in time for the holidays. The South Carolina Chapter challenges you to likewise reach out to your members, and make a generous and meaningful donation to the food banks in your state. It’s not too late. South Carolina is encouraging its members and firms to consider donating to the food banks the money that would otherwise be directed toward a holiday event that cannot go forward—and it's working! South Carolina just announced this undertaking late last week and the donations are continuing. As our organization continues to make great strides in diversity and inclusion, education, and various outreach efforts, make a difference in your community. Spread some holiday cheer to those in need! 

The Civics Committee of the Northern District of Ohio Chapter of the FBA hosted its annual Bill of Rights Birthday Party on Dec. 15, 2020, with fourth graders from Campus International School, in Cleveland. The event was held virtually for the first time ever. Hailey Hillsman, a Cleveland-Marshall College of Law student, created a fun program for the students and volunteers. Hillsman opened the celebration with a presentation summarizing the Bill of Rights. The students then participated in a Kahoot trivia game created by Hillsman, answering questions about the Bill of Rights. Volunteers reviewed the answers with students and answered questions about the role the Bill of Rights plays in their careers and generally about a career in law. Thank you to Campus International School for hosting us again this year. And a special thank you to all our volunteers: Erin Brown, Judge Phil Calabrese, Sarah Cleves, Derek Diaz, Hailey Hillsman, Brittany Kaczmarczyk, Bennett Kuhar, Maya Lugasy, Chelsea Mack, Joe Muska, Sandy Opacich, Cate Purdum, Justin Roberts, Jim Satola, Amanda Schenley, Sam Smart, and J Thompson. 

Keep in Touch With the FBA Update your information online at www.fedbar.org or send your updated information to membership@fedbar.org. January/February 2021 • THE FEDERAL LAWYER • 87

Member Spotlight * Denotes New Member Berrouane Zakaria

FIFTH CIRCUIT Austin

Artie Pennington

SIXTH CIRCUIT

Northern District of Ohio Jeffrey Helmick

New Orleans William Gibbens

EIGHTH CIRCUIT St. Louis

Amy Haywood

NINTH CIRCUIT

William D. Browning Tucson Rene Alcoverde, Jr.

TENTH CIRCUIT Utah

David Barlow Jared Bennett Paul Kohler Howard Nielson, Jr. Daphne Oberg

Contact the Federal Bar Association to claim your missing issue of The Federal Lawyer or order additional copies at (571) 481-9100 or social@fedbar.org. 88 • THE FEDERAL LAWYER • January/February 2021

Federal Bar Association Calendar of Events 

JA N UA RY

JA N UA RY 1 2 John W. Peck Cincinnati-Northern KY Chapter – Federal Practice Seminar for the Southern District of Ohio JA N UA RY 1 2

Admiralty Law Section: Admiralty and Maritime Law Issues Affecting the Plaintiff’s Bar

JA N UA RY 1 2 Immigration Law Section: Breakfast Series – Breakfast from the Border – A Look at Both Practice and Policy in the Current Landscape at the Dawn of a New Administration JA N UA RY 2 0 [Virtual] FBBC Board of Directors Meetings JA N UA RY 2 1 Qui Tam Section: [Virtual] False Claims Act Today – Eastern District of Texas JA N UA RY 2 2 [Virtual] FBA Board of Directors Meeting

JA N UA RY 2 2 Law Student Webinar Series: Career Paths for LGBTQ+ Law Students

F E B R UA RY 2 6 [Virtual] Labor and Employment Law Conference

JA N UA RY 2 6 How to Host a Zoom Brown Bag Lunch with Your Local Judges

MARCH 1 Capitol Hill Chapter Presents: WHAT GIRLS NEED: How to Raise Bold, Courageous, and Resilient Women By Marisa Porges, PhD.

F E B R UA RY

F E B R UA RY 2 How to Build a Client Base During COVID F E B R UA RY 5 Immigration Law Section: 2021 Asylum & Immigration Law Conference F E B R UA RY 8 [Virtual] Fashion Law Conference F E B R UA RY 1 7 [Virtual] 2021 Qui Tam Conference F E B R UA RY 2 3 Future of Jury Trials F E B R UA RY 2 4 Banking Law F E B R UA RY 2 5 [Leadership Training] Government Relations: Making an Impact on Capitol Hill

MARCH

MARCH 3-5 [Virtual] Tax Law Conference MARCH 8–12 2021[Virtual] Thurgood Marshall Moot Court Competition MARCH 15-19 [Virtual] Leadership Summit MARCH 17 [Virtual] FBBC Board of Directors Meetings MARCH 18 [Virtual] FBA Board of Directors Meeting MARCH 19 [Virtual] National Council Meeting MARCH 24 Veterans and Military Law

Visit Fedbar.org for more information.

APRIL

JUNE

APRIL 20 IP Section: Small Group SCOTUS Admissions Ceremony

JUNE 11 [Virtual] FBA Board of Directors Meeting

APRIL 8 Qui Tam Section: [Virtual] False Claims Act Today – District of Massachusetts

APRIL 22 Qui Tam Section: [Virtual] False Claims Act Today – Northern & Southern Districts of Mississippi

M AY

M AY 5 Corporate and Association Counsel Division M AY 1 0 The Capitol Hill Chapter’s Quarterly Supreme Court Update M AY 1 9 Alternative Dispute Resolution and Labor & Employment Law M AY 2 0 Qui Tam Section: [Virtual] False Claims Act Today – District of Colorado

JUNE 9 Qui Tam Section: [Virtual] False Claims Act Today – Western District of Missouri & District of Kansas

JUNE 24 [Virtual] FBBC Board of Directors Meeting

AU G U ST

AU G U S T 2 The Capitol Hill Chapter’s Quarterly Supreme Court Update

SEPTEMBER

SEPTEMBER 23–25 2021 FBA Annual Meeting & Convention Miami SEPTEMBER 23 [Virtual] FBA Board of Directors Meeting SEPTEMBER 24 [Virtual] FBBC Board of Directors Meeting SEPTEMBER 25 [Virtual] National Council Meeting

SAVE THE DATE

Annual Meeting & Convention September 23–25, 2021 HILTON MIAMI

DOWNTOWN – MIAMI, FL