The opinion of the court was delivered by: Magistrate Judge Bissoon
For the reasons that follow, Defendants will be ordered to produce to Plaintiff the documents and electronic storage devices submitted to the Court for in camera review.
By Order dated December 4, 2009, Defendants were directed to submit all documents they claimed were privileged under the Fifth Amendment, along with a written statement detailing why their withholding of such documents was justified. See Dec. 4th Order (Doc. 40) at 10. The Court emphasized that "[t]he relevant inquiry... is not whether the content of the document[s] is incriminatory, [but] whether the testimony inherent in the act of producing [them] is incriminatory." Id. at 6 (citation to quoted source omitted).
In response to the Order, Defendants have submitted "three removable flash drives used by Defendants Charles Fox, Jeff Wetzel, and John Kim," and "an external hard drive used by Defendant John Kim" ("the external storage devices," or "ESDs"). See Defs.' in camera stmt. at 1-2.*fn1 Defendants also have submitted 560 pages of hard-copy documents, all of which are contained on the external storage devices. Id. at 2.
Defendants argue that, by producing the ESDs, they would admit the existence, their possession, and the authenticity of the same. See id. at 2-3. Defendants claim, without explanation, that production of the documents contained in the ESDs likewise would be "testimonial." See generally id. at 3. Defendants assert that production of the withheld materials would create a reasonable apprehension of self-incrimination under the Computer Fraud and Abuse Act ("CFAA"). Id. at 5; see also id. at 7 (Plaintiff may attempt to show that Defendants used external storage devices to "access and store[ Plaintiff's] confidential and proprietary business information either without authorization or exceeding authorization in violation of the CFAA") (internal quotations omitted).
At the onset, the Court finds Defendants' arguments regarding their hard-copy documents particularly unpersuasive. Defense counsel has offered no meaningful justification, let alone legal support, as to why supposed doubts regarding the existence, possession, or authenticity of the ESDs somehow extends to independently existing documents.*fn2
More fundamentally, Defendants' assertions of Fifth Amendment privilege regarding the documents and the ESDs fail for the same reasons indicated in the Court's December 4th Order. As the Court stated:
How Defendants can show that their production would be testimonial is difficult to imagine. Defendants have made repeated offers to Plaintiff that it can have access to view the allegedly protected documents in a secure location in Defense counsel's office, upon assurances that Plaintiff will not retain and disseminate copies.... In addition, Defendants have produced a privilege log identifying approximately 400 pages of documents withheld on the basis of privilege against self-incrimination.... Through their conduct, Defendants have admitted the existence of allegedly privileged materials, and that such materials are within their possession or control. Likewise, it seems highly implausible that Defendants can, in good faith, object to the authenticity of documents they have offered for Plaintiff's viewing and have identified in their privilege log.
Dec. 4th Order at 5 (citations, internal quotations and alterations omitted).
A good number of the documents submitted for in camera review are the same as those identified in Defendants' initial privilege log. Although the remaining documents were contained in a later-produced supplemental privilege log, marked "submitted... for in camera review," Defendants' admissions regarding the existence and possession of the allegedly privileged documents, and Defense counsel's agreement to allow Plaintiff's inspection of them subject to certain conditions, apply to those documents with equal force.*fn3
Similar concessions have been made regarding Defendants' electronic storage devices. At a Status Conference on November 4, 2009, the Court and opposing counsel had detailed discussions regarding the production of electronic media, including the scope of information required for production (e.g., Defendants' home computers used only by family members were not subject to inspection, nor were Defendants' files regarding personal, rather than business, matters). At that time, Defense counsel acknowledged, in the presence of opposing counsel, Defendants' possession of portable electronic storage devices.
Perhaps even more telling, however, are Defendants' responses to Plaintiff's requests for production, in which Defendants affirmatively represented that they would "make available for inspection and examination... the requested electronic storage devices that were used by [them] while they were employed by Plaintiff." See Defs.' Resp. to Reqs. for Prod. (filed under Doc. 33-2) at 22. Defendants went on to say that, "[i]n light of [their] assertion of [the] privilege against self-incrimination, Defendants [would] not allow Plaintiff to actually view the electronic files contained in the [ESDs]." Id. This, of course, is the very type of content-based privilege assertion that has been squarely rejected under the law,*fn4 and, by agreeing to produce the ESDs, Defendants have conceded their existence, possession and authenticity.
The determination of whether a production is "testimonial" depends "on the facts and circumstances of [the] particular case." In re Foster, 188 F.3d 1259, 1270 (10th Cir. 1999) (citation to quoted source omitted). Testimonial privilege does not attach where "[t]he existence and location of the [materials] are a foregone conclusion," and the claimant's production "adds little or nothing to the sum total of the [requesting party's] information by conceding that he in fact has the [materials]." See U.S. v. Ponds, 454 F.3d 313, 319-20 (D.C. Cir. 2006) (citation to quoted, binding authority omitted). Under the circumstances, "no constitutional rights are touched" because "[t]he question is not of testimony but of surrender." Fisher v. U.S., 425 U.S. 391, 411 (1976) (citation to quoted source omitted, emphasis added).
As seen above, the existence and location of the materials in this case are a foregone conclusion. Defendants have routinely and consistently acknowledged possession, and, on numerous occasions, have offered to allow Plaintiff's inspection of the materials, subject to restrictions motivated by the potentially incriminating nature of their contents. As explained above, however, the mere fact that the requested materials contain information that may be incriminating is not a legitimate basis for withholding production. See discussions supra; see also, e.g., U.S. v. Teeple, 286 F.3d 1047, 1050-51 (8th Cir. 2002) ...