April 24, 2014

Ron Hedges

Ron is a special master, arbitrator, and mediator specializing in e-discovery and privilege issues. He served as a United States Magistrate Judge in the District of New Jersey from 1986 to 2007. Ron is a member of The Sedona Conference® Advisory Board. He is also a member of the Advisory Boards of the Corporate Counsel and E-Discovery Institutes of Georgetown University Law Center, where he teaches e-discovery and e-evidence. Ron is author of Discovery of Electronically Stored Information: Surveying the Legal Landscape (BNA: 2007) and a co-author of Managing Discovery of Electronic Information: A Pocket Guide for Judges (Federal Judicial Center: 2007).

avatar

Do corporations have a "personal privacy" right?

Today, the Supreme Court released its unanimous opinion in Federal Communications Commission v. AT&T Inc., No. 09-1279 (U.S. Mar. 1, 2011)

At issue was the question, “Does a corporation have a “personal privacy” right under the Freedom of Information Act?” In this decision, the United States Supreme Court said “no.” The decision was 8-0 with Associate Justice Kagan not participating in the decision.

What was the case about? A trade association sought disclosure of documents that AT&T had submitted to the FCC during an investigation. AT&T argued that the documents were exempt under FOIA Exemption 7(C), which prohibited disclosure of law enforcement records if the disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The United States Court of Appeals for the Third Circuit accepted AT&T’s argument, and held that a corporation could have a “personal privacy” right because a corporation was a “person” under FOIA.

The Supreme Court disagreed. Looking at the express text of FOIA as well as the common meaning of words, Chief Justice Roberts, writing for the Court, held that, absent an express definition of “personal” in FOIA, that word refers to individuals and not corporate entities.

It should be noted that corporations are, for various purposes, considered “persons” under constitutional and common law. However, at issue was a question of statutory interpretation.

The Court even got in a good zinger at the end, noting that, “We trust that AT&T will not take it personally.”

avatar

My Work at CITP This Year: Judicial Policy, Public Access, and The Electronic Court

Hi. My name is Ron Hedges. I am a Visiting Research Collaborator with the CITP for 2010-11.

Let me tell you a little about myself. I am a graduate of the University of Maryland and Georgetown University Law Center. I spent over twenty years as a United States Magistrate Judge and sat in Newark, NJ. I came to the Center through my work with the use and abuse of electronic information in civil litigation in the United States Courts. Several years ago, I wrote a decision on the subjects of “preservation” and “spoliation” electronic information. That led me to The Sedona Conference, a think-tank of academics, attorneys, and judges who focus on electronic information and other things. Today, I’m on a Sedona advisory board and work on, among other things, confidentiality, public access, and electronic information in criminal actions. For information on Sedona, go to www.thesedonaconference.org.

This year, I hope to work with the Center to update something Sedona did a few years ago on confidentiality and public access in civil litigation. Our society prizes two conflicting values: openness in our judicial system and protection for matters of personal privacy and “protected” information. Examples of the latter are trade secrets and personal medical information. How we as a society reconcile openness and protection in civil litigation was the theme of The Sedona Guidelines on Confidentiality and Public Access, published in March of 2007. This document is not focused on electronic information and offers only general guidance on access to electronic information managed by courts. I hope to use my time at CITP to conduct a symposium on confidentiality and access and to move The Sedona Guidelines forward.

Another project for 2010-11 would be to consider the automation of the review of electronic information for “relevance” and “privilege.” Relevance is a simple, but often misunderstood, concept. To be relevant, information must tend to either prove – or disprove – something. Privilege is also simple, but often misunderstood. To be privileged (in a broad sense), information must be either subject to either the “attorney client privilege” or “work product.” Privileged information need not be turned over to an adversary and, if it is turned over, there can be serious consequences. Not surprisingly, human review for privilege is estimated to account for about half of the cost of litigation.

The “holy grail” of litigation is to come up with an automated process or processes for relevance and privilege review that is reasonable. The process must also be something that can be explained to laypeople (i.e., judges and lawyers). Research is being spearheaded by NIST, and I hope to have CITP sponsor a program on automated search that would feature, among others, Jason Baron of NARA and Maura Grossman of the Wachtell firm. They have led the NARA initiative and are prominent exponents of automated review.

Finally, I hope to offer a symposium or class to introduce technology-oriented folks like you to the intricacies of the law as it deals with electronic information.

Please give me your thoughts as we move toward the Fall semester.