FBI, Prosecutors Given Copies Of Defense Documents By Duplication Service Defense Was Instructed To Use

from the pixels-are-cheap dept

So much for attorney-client privilege. According to a report by Dan Christensen of Florida Bulldog, the feds' insistence that defendants utilize its contracted document duplication system has led to FBI access of privileged work product.

Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”

The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.

[...]

Specifically, the court papers allege that Fort Lauderdale-based copying service Imaging Universe and president Ignacio E. Montero provided the government with CDs containing duplicates of documents Schapiro’s defense team culled from 220 boxes of evidentiary records in preparation for trial.

The government has responded with a filing [PDF] claiming it has done nothing wrong. It acknowledges the FBI and the US Attorney's office received copies of the files from the duplication service, but claims it never asked the company to perform this "service." That's at odds with other information gleaned by the defense, as well as an admission by a federal prosecutor.

The motion contends that company president Montero “lied” to Arteaga-Gomez about the copying process, and instead of making sure the government did not see the defense’s hand-selected files, provided FBI case agent Deanne Lindsey with duplicate copies.

[...]

Hayes, the federal prosecutor on Schapiro’s case, first informed Srebnick and his associate that agent Lindsey “had been surreptitiously receiving the CDs” on April 22, according to the defense motion.

“Hayes proposed to immediately destroy the CDs,” but the lawyers asked instead that he give them to the defense, “which he did,” the motion says.

The defense also claims to have a document in hand written by the owner of the duplication company stating that he has turned over duplicates of defense documents to the government multiple times over the past decade.

The government's response to the defense's motion makes a couple of points -- one more credible than the other.

The first is the government's assertion that all work product is not created equal, in terms of privilege.

The sole issue before the Court is whether the file name titles created by the defense late in the discovery process, or the patient files that SA Lindsey viewed, can be considered protected opinion work product, and if so, whether there is any legal basis to sanction the United States based upon her exposure to them.

Simply, there has been no showing that the documents at issue were protected work product, and there is no basis for the sweeping remedies Defendant seeks. Work product protection does not apply to every selection, opinion or mental process of an attorney. While Defendant’s argument conflates fact work product, which enjoys no protection or privilege, and opinion work product, which may be protected, he bears the burden of showing that work product protection covers each document at issue—and he has failed to do so.

This is an interesting assertion considering the government -- in response to FOIA requests -- tends to treat all work product as privileged and thus out of the reach of requesters. Here, it claims there are varying levels of privilege and tosses the burden of proof over to the defense to show why these documents should not have been seen by prosecutors.

The second assertion the government makes, however, undercuts the severity of the defense's claims -- if only in this particular case. All documents duplicated by the third-party service for the defense (and shared with the government) were already in the FBI's possession. They were taken from 220 boxes of medical/patient files seized by the FBI during its investigation. While viewing the illicit duplicates may have given the government some insight into the defense's preparations, it did not give prosecutors access to documents they otherwise wouldn't have had access to.

The government has also instructed the duplication service to stop providing "courtesy copies" (as the owner of the service refers to them) of defense documents to prosecutors.

Whether or not there was any impropriety, there's certainly the appearance of impropriety. The prosecutor's office, along with the FBI, apparently accepted the unauthorized duplicates without complaint, only seeing fit to provide clear instructions to the duplication service after its improper access was exposed.

Filed Under: attorney client privilege, fbi, florida, photocopies

India Wants Students And Researchers To Have The Right To Photocopy Books

from the medicines-for-the-mind dept

Techdirt has run several stories about the difficulties students in emerging economies have when it comes to buying expensive study materials. Back in 2012, Costa Rican students took to the streets to defend their right to photocopy otherwise unaffordable university textbooks. Earlier this year, Indian textbook authors asked for a lawsuit brought by Western publishers against Delhi University and a nearby photocopying shop over alleged infringements to be dropped. A common element to those two stories is that students often resort to making photocopies of books, since they can't afford the originals. According to this story from Calcutta's The Telegraph, it seems that the Indian government wants to turn the practice into a recognized right:

India will seek changes to international copyright regulations so that students and researchers can procure photocopies of expensive books without having to pay royalties, a senior government source said.

Come December, he said, the Union human resource development ministry will ask the World Intellectual Property Organisation (Wipo) to relax its norms that protect authors' and publishers' commercial rights over their books.

The ministry will suggest at the next general assembly of Wipo, a UN body with 185 nations as members, that educational and research institutions be exempted from the copyright regime.

That's a pretty bold move, and it will be interesting to see the details. But it is certainly in keeping with India's successful attempts to make vital medicines available to its people at prices they can afford, despite what the patent-holders might want. In some ways, this new plan is an extension of that idea, since it recognizes that some things -- like medicine or knowledge -- are simply too important for developing countries to be kept locked up by Western monopolists.

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Filed Under: copyright, education, india, photocopies, research, textbooks

Western Publishers Sue Delhi University Over Photocopied Textbooks; Students And Authors Fight Back

from the equitable-access dept

Back in October last year, we wrote about Costa Rican students taking to the streets to defend their right to photocopy otherwise unaffordable university textbooks. Of course, that's not just a problem in Costa Rica: in many parts of the world, high prices act as a significant barrier to education, and it will come as no surprise that photocopying is an accepted practice in many countries.

That's certainly true in India, where an important battle is playing out around this issue. Here's a summary from Al Jazeera's Web site:

Cambridge University Press (CUP), Oxford University Press and Taylor & Francis launched a lawsuit last year against Delhi University (DU) and a reprographics shop near its campus for producing "course packs" -- bound collections of photocopied extracts from books and journals that are sold for much cheaper than textbooks. The publishers claim the practice infringes on copyright, and that they and their authors are losing money as a result.

The publishers are demanding over $110,000 in damages for this alleged infringement.

But Delhi University's Association of Students for Equitable Access to Knowledge (ASEAK) -- set up to help fight the lawsuit -- points out that according to the Indian Copyright Act 1957 (pdf), in addition to the usual fair dealing/fair use rights, copying for the purposes of teaching is explicitly allowed:

52. Certain acts not to be infringement of copyright. -(1) The following acts shall not constitute an infringement of copyright, namely:

…

(h) the reproduction of a literary, dramatic, musical or artistic work-

(i) by a teacher or a pupil in the course of instruction; or

(ii) as part of the questions to be answered in an examination; or

(iii) in answers to such questions;

Recently, 309 academics and authors -- 33 of whom were mentioned in the lawsuit -- have sent a letter to the publishers involved, asking that they withdraw their legal action. That's an indication of the widespread concern that a victory in the courts by the publishers would have hugely negative effects on education in India, as ASEAK explains:

That photocopying of educational material takes place at such a large scale across the country and across disciplines is indicative of the gap within our education system that is filled by photocopying. Until alternative mechanisms of access to the same material is evolved, any curbing on photocopying will severely impact the student community, not only in Delhi School of Economics, or Delhi University, but in every educational institute across the country. We affirm and express solidarity with the students of Costa Rica who are fighting for their right to photocopy, directly linked with access to education, as it is in India. We express our solidarity with the open access movement and affirm the cause that Aaron Swartz fought for. We welcome the move in the USA that has led to the decision of free access to publicly funded research after one year of remaining within subscription journals, and will push for similar moves for opening access to publicly funded research within India, including academic works produced by teachers while being employed by State Universities.

The battle here is part of a larger effort by publishers to enforce Western-level pricing in markets that are simply unable to bear them. Interestingly, it's exactly the same battle that is currently taking place in India over access to medicines, which recently resulted in a significant victory for producers of low-cost drugs. It will be interesting to see whether the current case about access to knowledge goes the same way.

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Filed Under: copyright, costa rica, education, fair use, india, photocopies

Canadian Copyright Group Sending Huge Bills To Schools For Daring To Teach Kids With Photocopies

from the can't-educate-unless-you-pay-up dept

A recent ruling by the Copyright Board of Canada has changed how much schools had to pay for copying educational materials, such as textbooks, newspapers and magazines. Michael Geist lets us know that collections group Access Copyright, apparently wasted little time before sending bills that reached hundreds of thousands of dollars to various school districts. Apparently, you can't educate kids unless you pay up.

Filed Under: canada, copyright, photocopies, schools
Companies: access copyright