Discovery, Privacy, and the (Potentially) Next Supreme Court Justice

Discovery, Privacy, and the (Potentially) Next Supreme Court Justice

The next Supreme Court justice could be a conservative jurist whose noteworthy opinions include a ruling against the IRS in a contentious discovery dispute with Tea Party activists and a recently overturned decision on the collection of cell site data. That judge is Raymond Kethledge, of the Sixth Circuit, who is reportedly the frontrunner in the race to replace Justice Anthony Kennedy.

Supreme Court Contenders

When Justice Kennedy announced his retirement from the Supreme Court last week, he gave President Donald Trump an opportunity to radically impact the court for years to come. And the president has moved quickly to seize that opportunity, meeting with potential justices and announcing his plan to pick a Kennedy replacement by Monday, July 9th. According to reports from the New York Times, Bloomberg News and the Washington Post, there are five serious contenders for that seat. They are:

Judge Brett Kavanaugh: A judge on the D.C. Circuit, Kavanaugh is a former Kennedy clerk who worked as a prosecutor under Kenneth Starr and as a staff secretary to President George W. Bush.

Judge Amy Coney Barrett: Sitting on the Seventh Circuit, Barrett is a former Scalia clerk who could prove to be a particularly controversial choice, given her previous criticism of Roe v. Wade.

Judge Amul Thapar: Thapar is a recent addition to the Sixth Circuit, having been confirmed just one year ago, after serving as a district court judge in the Eastern District of Kentucky for nearly a decade.

Judge Thomas Hardiman: A judge on the Third Circuit, where he sits alongside Donald Trump’s sister, Hardiman was reportedly a close runner-up for a Supreme Court nomination after the passing of Justice Antonin Scalia.

Judge Raymond Kethledge: Kethledge is another former Kennedy clerk and a previous candidate for the seat eventually occupied by Justice Neil Gorsuch.

Now, none of these judges are “eDiscovery judges,” but that doesn’t mean discovery jurisprudence won’t play a role in the nominations—at least if that nomination goes to Kethledge.

Judge Kethledge’s Discovery Jurisprudence

The case that helped bring Kethledge to prominence was In re United States v. NorCal Tea Party Patriots. This putative class action arose in the wake of 2013's IRS targeting scandal. It was in 2013 that the tax agency revealed that it had targeted certain groups seeking tax-exempt status for greater scrutiny, based on their names and politics. Organizations with “Tea Party,” “Patriots,” and “9/12” in their name, for example, were placed on a “Be On the Lookout” (BOLO) list and experienced significant extra delays and burdens during the processing of their tax-exempt status applications, including “crushing demands” for “unnecessary information.”

After the IRS’s actions came to light, the NorCal Tea Party Patriots and a host of related groups sued, alleging violations of the First and Fifth Amendments and the federal Privacy Act. During discovery, plaintiffs requested information relevant to class certification, including the names of employees who worked on their applications and the names of organizations placed on the agency’s BOLO list. The IRS refused to hand those names over, claiming in part that producing the names would be “unduly burdensome.”

Quickly, discovery fights began to overtake the case. “It looks like everything in this case seems to be turning into an argument on discovery,” the district court noted. “I think we’ve already had more discovery conferences in this case than I’ve had in any other case this whole year.” The court accused the IRS of refusing to engage in class discovery and described the agency as “running around in circles and not answering the questions.”

I feel like the government is doing everything it possibly can to make this as complicated as it possibly can, to last as long as it possibly can, so that by the time there is a result, nobody is going to care except the plaintiffs. . . . I question whether or not the Department of Justice is doing justice.

The court eventually ordered the IRS to produce the requested documents, leading to the agency’s appeal to the Sixth Circuit. That appeal did not go well.

“[I]n this lawsuit,” Judge Kethledge wrote for a unanimous three-judge panel, “the IRS has only compounded the conduct that gave rise to it.” The Sixth Circuit rejected the IRS’s argument that the names of organizations on the BOLO constituted confidential “return information.” While the general rule is that return information is confidential, the court explained, “applications for tax-exempt status are very different from tax returns.” Indeed, successful exemption applications are made public—a fact the IRS reminded Tea Party groups of when requesting extensive information from them during the application process. Judge Kethledge writes:

And that means the IRS’s petition is patently meritless as to the names and identifying information of groups whose applications the IRS has since granted—which is presumably most of the names and information at issue here, given the very high approval rate of tax-exemption applications generally.

For those organizations where tax-exempt status was not granted, the confidentiality rules did not apply, as applications for tax-exempt status are not “return information.”

The ruling was a largely technical one, and though it created a split with the D.C. Circuit, its impact is fairly limited, confined as it is to discovery disputes with the IRS. But it was the outcome, victory for conservative organizations alleging mistreatment by the government, and Judge Kethedge’s frank criticism of the IRS that brought the opinion attention and praise. In his conclusion, Kethledge writes:

In closing, we echo the district court’s observations about this case. The lawyers in the Department of Justice have a long and storied tradition of defending the nation’s interests and enforcing its laws—all of them, not just selective ones—in a manner worthy of the Department’s name. The conduct of the IRS’s attorneys in the district court falls outside that tradition.

Kethledge on Data, Surveillance, and the Fourth Amendment

Another key Kethledge opinion of interest to legal professionals working at the intersection of technology and privacy is his ruling in United States v. Carpenter. That case turned on whether the government’s collection of historic cell site records, pursuant to the Stored Communications Act but without a warrant, violated the Fourth Amendment’s prohibition on unreasonable search and seizure.

Government investigators had relied on cell site location information to place Timothy Carpenter and Timothy Sanders within a half-mile to two-mile radius of a series of robberies of (ironically) cell phone stores. Based in part on that evidence, the men were convicted of several counts of aiding and abetting robbery in violation of the Hobbs Act and using or carrying a firearm during a federal crime of violence.

On appeal to the Sixth Circuit, the men argued that the government’s collection of cell site records—127 days’ and 12,898 data points’ worth of records for Carpenter—was unconstitutional. While a court order issued under the Stored Communications Act requires a showing of “reasonable grounds” that the records were relevant and material to an investigation, the Fourth Amendment requires a warrant based on probably cause, Carpenter argued.

Kethledge did not agree, rejecting Carpenter’s privacy arguments. “[A]lthough the content of personal communications is private,” he wrote, “the information necessary to get those communications from point A to point B is not.” Cell site records were comparable to the outward labeling on packages, such as the recipient’s name and address, or the metadata used to route emails, neither of which are protected by the Fourth Amendment. Kethledge continues:

[A]ny cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone “exposes” its location to the nearest cell tower and thus to the company that operates the tower… And any cellphone user who has paid “roaming” (i.e., out-of-network) charges—or even cellphone users who have not— should know that wireless carriers have “facilities for recording” locational information and that “the phone company does in fact record this information for a variety of legitimate business purposes.”

Thus, he concludes, there is no expectation of privacy in the information collected.

Just two weeks ago, however, the Supreme Court ruled otherwise. In Carpenter v. United States, the Court explained that police generally need a warrant to collect historic cell site data, at least over an extended time. Citing the “seismic shifts in digital technology,” Chief Justice Roberts, writing for the five-justice majority, explained that such collection does not fall neatly within past precedents. Today, carrying a cell phone, the Court reasoned, is “indispensable to participation in modern society.” Yet the data collected by such devices allows for “near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”

The Court’s ruling was narrow, the Chief Justice emphasized, and does not “express a view on” related privacy issues. But commentators believe it could have long-ranging impacts.

“It’s hugely important,” Orin S. Kerr, a professor at the George Washington University Law School, recently told the ABA Journal. “This is the case that is going to determine the limits on the government’s surveillance power at the state and federal level in new technologies for years to come. I think the justices know that.”

“This is not about just one technology and one criminal defendant,” claims Andrew G. Ferguson, a privacy expert and professor at the University of the District of Columbia. “It is really about how the Fourth Amendment will or will not protect all Americans in the digital age.”

Should Kethledge be nominated and confirmed, and should his approach to digital-age Fourth Amendment cases remain the same, he will not necessarily upset the Court’s balance on this issue. Justice Kennedy, whom he would replace, dissented, describing the opinion as creating “an unprincipled and unworkable line between cell-site records on the one hand and financial and telephonic records on the other.”

This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at or on Twitter at @caseycsull.

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