Once again, eDiscovery and forensics are in a “ripped from the headlines” (as Mary Mack and Kaylee Walstad would say) story. This time, it involves forensics’ role in the Trump election controversy.
The Washington Post has reported in two articles in eight days regarding how lawyers allied with President Donald Trump asked a forensic data firm – Atlanta-based SullivanStrickler – to access county election systems in at least three battleground states.
According to this Post article, attorney Sidney Powell sent the team to Michigan to copy a rural county’s election data and later helped arrange for it to do the same in the Detroit area, according to the records. A Trump campaign attorney engaged the team to travel to Nevada. And the day after the Jan. 6, 2021, attack on the Capitol the team was in southern Georgia, copying data from a Dominion voting system in rural Coffee County.
The emails and other records obtained by The Post were collected through a subpoena issued to SullivanStrickler by plaintiffs in a long-running lawsuit in federal court over the security of Georgia’s voting systems. The first article referenced above reports some of the correspondence regarding how Trump attorneys directed the forensics team at SullivanStrickler to perform forensic collections to collect voting machine data. Court orders were granted for these collections, enabling the team to conduct them as directed by Powell and other Trump attorneys.
That WP article goes on to discuss various parties who were reportedly given access to the collected data, which has led to an investigation by the Michigan attorney general for an alleged scheme to improperly access voting machines.
The second article by The Post from Monday provides more information, including the fact that records provided to plaintiffs in a long-running federal lawsuit over the security of Georgia’s voting systems inadvertently detailed the sharing of data the firm collected during a separate forensic examination in Antrim County, MI, where a judge in December 2020 had granted access to elections systems in response to a lawsuit challenging the 2020 results.
In the records turned over to the Georgia plaintiffs, some pages, and portions of others, were blacked out. However, the text beneath some of the blacked-out blocks became visible when a Post reporter copied and pasted it into a separate file, showing downloads of files labeled “Antrim”, which is yet another example of poorly executed redactions (like the example I discuss in this white paper released last week). Yeesh.
The second article also includes statements by SullivanStrickler, who said the attorneys who hired the firm directed it “to contact county officials to obtain access to certain data” from Dominion Voting Systems machines in Georgia and Michigan.
“Likewise, the firm was directed by attorneys to distribute that data to certain individuals,” the statement said. The firm said that it “had [and has] no reason to believe that, as officers of the court, these attorneys would ask or direct SullivanStrickler to do anything either improper or illegal.”
SullivanStrickler’s statement also said the firm would be “fully cooperative” with investigators. “We are confident that it will quickly become apparent that we did nothing wrong and were operating in good faith at all times,” it said.
Needless to say (but I’ll say it anyway), this is one big kerfuffle, with a forensics firm caught in the middle. But forensics’ role in the Trump election controversy is one where the lawyers and courts were calling the shots here. Based on everything I’ve read, SullivanStrickler operated (as forensics firms do) under the direction and supervision of attorneys, doing their work under court orders and being given data by the actual custodians.
A good carpenter never blames their tools and neither SullivanStrickler nor forensic collection can be blamed for the mess that happened here, but it does reflect how data drives so many of these “ripped from the headlines” disputes today. Forensics’ role in the Trump election controversy illustrates the ubiquity of data in these disputes today. It’s inevitable.
So, what do you think? What will be the next eDiscovery and forensics “ripped from the headlines” story? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.