Legal motions regarding ediscovery tend to be pretty dry, so when I saw references in a May 6th ediscovery motion citing “lame excuses,” “obfuscations,” “malfeasance,” “misfeasance,” and “a glaring ethical violation,” my interest was piqued. Little doubt that this ediscovery motion involved a heated dispute.
Indeed, a heated dispute amidst a much broader dispute that has attracted national media attention and contrary commentary from both President Trump and former President Obama. That is, the ongoing legal saga of Trump’s first national security advisor, Michael Flynn, who pled guilty to lying to the FBI as part of the investigation into alleged collusion between the Trump Administration and Russia during the 2016 election.
The latest legal developments in the case also includes a May 7th motion from the Department of Justice to drop the charges, based in large part on the release of internal DOJ documents that suggest that the FBI’s investigation of Flynn was unjustified and that the basis for the interview that led to the charges was spuriously concocted as set up. Meanwhile, the court was already dealing with a long-standing motion from the Flynn defense team to withdraw his guilty plea based on the “government’s bad faith, vindictiveness and breach of the plea agreement” (the aforementioned ediscovery motion being the latest legal development in that part of the saga).
From a political standpoint, if you’re a Republican you likely believe that Michael Flynn was railroaded by an out-of-control FBI and DOJ as part of its efforts to take down the Trump Administration via the Trump-Russia collusion investigation. If you’re a Democrat, you’re more likely to think that U.S. Attorney General Bill Barr has gone rogue on behalf of Trump, and that Flynn deserves to be thrown into prison in chains, followed quickly by Trump and all of his minions.
For the Sake of eDiscovery, Let’s Leave Politics Aside….
But we’re not talking politics here—we’re talking ediscovery. In this case, the amount of overall ediscovery would likely be taxing to the computer servers of yesteryear, but we’re just looking at one small piece of the ediscovery motion, which pits Flynn against his former lawyers. You see, Flynn and his current lawyers blame Flynn’s guilty plea on bad lawyering by the former legal team of Covington & Burling LLP. Thus, they want all documentation and data pertaining to the case as compiled by Covington during their alleged bad lawyering stint. Flynn’s new legal team is likely looking for exculpatory data that might be found among Covington’s plea dealing with the DOJ, or at the least, information showing that the former legal team may have been tainted by conflicts of interest (Covington partner former Obama Attorney General Eric Holder reportedly dipped his nose into the case) and/or that the plea deal was negotiated in bad faith.
Light Those Fireworks!
Anyhow, Covington has apparently been dragging its heels for nine months on the court’s order for ediscovery, and Flynn’s lead attorney, Sydney Powell (of Harvey & Binnall, PLLC) has had enough, as evidenced by the most recent motion. Powell excoriates Covington for offering “lame excuses and obfuscations for its unilateral determination not to comply with this Court’s order.” Powell’s motion goes on to say:
“This is not a minor squabble about legal fees or copying costs. This is a changing of the guard in a criminal case in which the client’s life, liberty, and reputation are at stake. Moreover, what began as a commonplace substitution of one set of counsel for another in ongoing litigation has become fraught with more difficulty and more delicacy, because a significant lawyer-client dispute has been added to the mix. That very dispute exists because of Covington’s self-interest— a glaring ethical violation which its Notice of “Compliance” now itself evinces.”
While I am not sure whether the legal arguments the motion lays out regarding Covington’s many transgressions in failing to adequately comply with the court’s ediscovery order will fly with the judge, they certainly made for interesting reading.
Will Judge Grant Flynn Direct eDiscovery Access?
I’m also not so sure that the judge will go along with Powell’s ultimate request in the Michael Flynn ediscovery motion:
“This is one of the most important cases in the country’s history. Because Covington has proven unreliable in collecting and producing documents itself, the Court should require that the firm, at its own expense, provide current counsel for Mr. Flynn with direct access to its e-discovery vendor so that Mr. Flynn can ensure accountability in the collection and production process.”
Of course, all this may be rendered moot by the DOJ’s motion to drop the case, should the judge agree. Nevertheless, this case certainly shows that ediscovery can be fun!