Archive for June, 2011

FOIA, e-discovery, and the Palin e-mails

Does anyone else think it wasteful that the Palin e-mails released today pursuant to a long-pending FOIA request were distributed in hard copy? Here’s the Washington Post:

“The promise of potential news about Palin drew a deluge of reporters and other media employees to Alaska’s picturesque, isolated capital of Juneau, where state officials Friday prepared six sealed boxes of printed messages for each news organization that paid for the documents. Reporters fought for elevators in a mad rush out of the building to begin converting the documents into electronic form for perusal and publication.”

It used to be in litigation that discovery was kind of like today’s document dump. More senior lawyers still talk about how many documents are at issue in terms of how many “bankers’ boxes” of documents need to be reviewed. But more junior lawyers are accustomed to electronic review. Bankers’ boxes are largely a thing of the past in civil litigation. Why not in FOIA?

One difference between native-format disclosure and hard-copy disclosure is that native-format disclosure carries with it metadata (i.e., data about the data). Even if there were concerns about metadata (not sure what they might be, and not sure whether metadata is excluded from disclosure under FOIA), wouldn’t it have made more sense to scan the relevant e-mails and distribute electronic files? Sometimes it might make tactical sense to increase transaction costs for disclosures. But the costs here will not deter news organizations, so why not avoid the waste of so much paper and time?

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Oral arguments before the Eleventh Circuit began with Chief Judge Dubina seeking permission to stop thinking about which parties have standing to challenge which provisions of the Affordable Care Act. The basic reasoning (apparently endorsed by Judge Marcus and not challenged by Judge Hull) seemed to be:

(a) there are two challenges: (1) a challenge to the individual mandate; and (2) a challenge to Medicaid provisions;
(b) an individual plaintiff in the case has standing to challenge the individual mandate;
(c) the States in the case have standing to challenge the Medicaid provisions;
(d) the Court can therefore rule on both the individual mandate and the Medicaid provisions; consequently,
(e) it is wholly academic to decide whether the States have standing to challenge the individual mandate (or whether the individuals have standing to challenge the Medicaid provisions).

This reasoning would make perfect sense if the Eleventh Circuit were the Supreme Court. A Supreme Court ruling binds the whole country, by virtue of vertical stare decisis. An Eleventh Circuit ruling does not bind the whole country. It binds district courts within the Eleventh Circuit, by virtue of vertical stare decisis. But outside the Eleventh Circuit, its ruling has binding effect only with respect to the parties to the judgment.

In the absence of inseverability, it would make little difference as a practical matter whether the Eleventh Circuit ruled on state standing to challenge the individual mandate. If the individual mandate were held unconstitutional and severable, that would have no effect on the the legal obligations of the States who, after all, are not subject to the individual mandate. But if the individual mandate were held unconstitutional and inseverable (as the district court held), and if the States are proper parties to the judgment, then the entire Affordable Care Act is a dead letter with respect to the plaintiff States (but only those States along with those in the Eleventh Circuit). But the world is different, and not just as an academic matter, if the States are _not_ proper parties to that judgment (as they are not). That is because the Eleventh Circuit’s ruling would have no effect in those States on the enforceability of the other provisions of the Affordable Care Act that, unlike the mandate, are currently in effect.

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