WEBVTT - Is $550 Million Enough to Settle Facebook Suit? 0:00:00.160 --> 0:00:04.400 This is Bloomberg Law with June Grasso, a federal judge 0:00:04.440 --> 0:00:08.680 is questioning a proposed five fifty million dollars settlement of 0:00:08.680 --> 0:00:13.080 a class action privacy lawsuit against Facebook, asking whether that's 0:00:13.119 --> 0:00:16.799 really a lot of money under the circumstances. Facebook proposed 0:00:16.840 --> 0:00:19.799 the deal in January to resolve the lawsuit, in which 0:00:19.920 --> 0:00:23.720 users claim the company illegally gathered biometric data through a 0:00:23.760 --> 0:00:27.200 photo tagging tool. The company needs the judge's approval to 0:00:27.360 --> 0:00:30.320 escape a jury trial that could expose it to billions 0:00:30.320 --> 0:00:33.879 of dollars in damages. My guest is Mark Rifkin, a 0:00:33.960 --> 0:00:38.839 partner Wolf Hallden. Steam start by explaining the lawsuit and 0:00:39.040 --> 0:00:41.720 what was at stake for Facebook. So, this is a 0:00:41.760 --> 0:00:45.040 class action that has been brought by consumers under the 0:00:45.120 --> 0:00:51.280 Illinois Biometric Information Privacy Act. And the plaintiffs complain that 0:00:51.479 --> 0:00:57.360 Facebook used servers in California that captured biometric information from 0:00:57.600 --> 0:01:01.520 consumers in Illinois without their knowledge or consent. And that's 0:01:01.520 --> 0:01:05.479 a violation of this Illinois statute that imposes pretty substantial 0:01:05.520 --> 0:01:09.560 penalties on companies like Facebook. But do that under this settlement, 0:01:09.760 --> 0:01:11.920 the class members would get a hundred and fifty to 0:01:12.000 --> 0:01:17.400 three hundred dollars or between of a possible recovery. Does 0:01:17.440 --> 0:01:19.960 that sound low to you? Well, I hate to sound 0:01:19.959 --> 0:01:22.440 like a lawyer when I answer that question, but it's 0:01:22.440 --> 0:01:26.240 hard to answer because there are some issues that at 0:01:26.319 --> 0:01:29.480 least the plaintiffs have raised in their brief and support 0:01:29.520 --> 0:01:33.840 of the settlement that raise some questions about how successful 0:01:34.400 --> 0:01:37.240 they might be. And part of that has to do 0:01:37.400 --> 0:01:41.200 with the extent to which Illinois law can be applied 0:01:41.400 --> 0:01:45.640 to a company that operates primarily outside of Illinois. For example, 0:01:45.680 --> 0:01:48.720 this case is pending in the Northern District of California 0:01:48.800 --> 0:01:51.720 because that's where Facebook is and its servers are not 0:01:51.800 --> 0:01:55.520 located in Illinois. So the machines that are capturing the 0:01:55.560 --> 0:02:00.200 biometrics are not located in the state. That makes at 0:02:00.280 --> 0:02:04.360 conduct unlawful. That's one big question. The other question is 0:02:04.400 --> 0:02:07.520 when you have a company as big as Facebook and 0:02:07.600 --> 0:02:12.560 as many consumers are affected as are affected here, the 0:02:12.639 --> 0:02:19.640 statutory penalty under the Illinois Statute becomes so large that 0:02:20.040 --> 0:02:23.760 the court needs to exercise some discretion to keep the 0:02:23.880 --> 0:02:28.600 case proportionate. And so, even though the statute allows for 0:02:28.680 --> 0:02:31.760 a recovery of a thousand dollars for violation or as 0:02:31.840 --> 0:02:36.440 much as five thousand dollars for for knowing and intentional violations. 0:02:36.680 --> 0:02:39.320 It's not clear that that would be the recoverable amount. 0:02:39.520 --> 0:02:42.359 So it's hard to say whether this is an adequate 0:02:42.400 --> 0:02:45.639 settlement or not an adequate settlement because there's just too 0:02:45.639 --> 0:02:48.200 many facts that that you need to know in order 0:02:48.200 --> 0:02:51.600 to be able to make that determination. So the federal 0:02:51.720 --> 0:02:55.679 Judge James Donato said at a hearing last week, that's 0:02:55.720 --> 0:02:59.080 not an issue here. Five million dollars is a lot, 0:02:59.240 --> 0:03:03.119 but the question is is it really a lot? Yeah? 0:03:03.200 --> 0:03:05.640 I think what Judge Denato meant to say was it's 0:03:05.680 --> 0:03:08.840 a lot of money, but is it enough money? And 0:03:08.840 --> 0:03:12.520 and that depends upon how convinced you are that number one, 0:03:12.919 --> 0:03:16.200 Illinois would be able to apply its laws to Facebook 0:03:16.880 --> 0:03:20.919 when Facebook is acting outside of Illinois. And then number two, 0:03:21.080 --> 0:03:24.360 when you aggregate all the damages of all the consumers 0:03:24.360 --> 0:03:29.200 in Illinois who are affected, is the number that would 0:03:29.200 --> 0:03:33.320 be imposed on on Facebook by way of statutory damages? 0:03:33.560 --> 0:03:36.840 Is that just too big a number to be disproportionate? 0:03:37.520 --> 0:03:40.320 And I think that those are questions that really need 0:03:40.400 --> 0:03:44.360 to be explored. The one thing that I think everybody 0:03:44.480 --> 0:03:46.640 is looking at as a sort of a game changer. 0:03:46.720 --> 0:03:49.960 Here is the five billion dollar settlement that Facebook entered 0:03:50.000 --> 0:03:54.360 into the two thousand nineteen with the FTC. And I 0:03:54.400 --> 0:03:58.480 think that has gotten Judge Donato's attention, and he wants 0:03:58.520 --> 0:04:04.240 to compare this settlement with the FTC settlement. The judges 0:04:04.360 --> 0:04:08.760 asking the attorneys to address those concerns of his. But 0:04:08.880 --> 0:04:13.000 weren't the issues different in the FTC case. Well, there 0:04:13.040 --> 0:04:17.239 are different issues, but they're not unrelated issues. Look for years, 0:04:17.400 --> 0:04:21.600 for for almost a decade already, Facebook has been under 0:04:21.680 --> 0:04:25.839 intense scrutiny because of the way it treats consumer data. 0:04:26.240 --> 0:04:30.800 And in two thousand twelve, Facebook entered into a settlement 0:04:30.920 --> 0:04:35.320 order with the FTC that supposedly restricted its right to 0:04:36.279 --> 0:04:39.560 control user data. Facebook has always said that if you 0:04:39.640 --> 0:04:42.840 put something on Facebook, Facebook owns the data, and there's 0:04:42.880 --> 0:04:47.359 been lots of pushback against that. Then in two thousand nineteen, 0:04:47.440 --> 0:04:51.719 the FTC announces this enormous settlement, five billion dollars dwarfs 0:04:51.760 --> 0:04:54.840 any kind of privacy settlement that's ever been ever been 0:04:54.880 --> 0:04:58.400 inteviewed to. And they say, you ignored the restrictions that 0:04:58.440 --> 0:05:02.160 we put on you into thousand twelve, and you've done so, 0:05:02.240 --> 0:05:05.320 not just for users data, but also for the data 0:05:05.400 --> 0:05:08.200 of the frames of users. And and part of this 0:05:08.279 --> 0:05:12.320 is because Facebook creates such a web of connections between users. 0:05:13.200 --> 0:05:17.640 It's it's just a monstrously big problem. And Judge Donato, 0:05:17.800 --> 0:05:22.200 I think rightly said, look, does that conduct take us 0:05:22.200 --> 0:05:25.120 out of the realm of a negligent violation of the 0:05:25.160 --> 0:05:29.200 Illinois Biometric Privacy Statute? Or does it put Facebook in 0:05:29.240 --> 0:05:33.080 the realm of being knowing an intentional and willful violator, 0:05:33.560 --> 0:05:38.160 in which case the potential statutory damages under the Illinois 0:05:38.240 --> 0:05:41.799 statute are not a thousand dollars per violations, but five 0:05:41.800 --> 0:05:45.320 thousand dollars per violation. And that obviously changes the risk 0:05:45.480 --> 0:05:48.320 to Facebook and the size of the case, and all 0:05:48.360 --> 0:05:50.800 of those things I think need to be looked at 0:05:50.839 --> 0:05:55.160 together to understand the way the court will view the 0:05:55.279 --> 0:05:58.560 settlement that is being proposed to it. Do judges just 0:05:58.839 --> 0:06:03.000 often rubber stay settlements like this? Is this unusual for 0:06:03.080 --> 0:06:07.040 a judge or is it typical? Well, it's it's unusual, 0:06:07.160 --> 0:06:12.040 but it's not unprecedented. Sometimes when a settlement is presented 0:06:12.040 --> 0:06:14.000 to the court, the court will look at it and 0:06:14.240 --> 0:06:16.960 realize very quickly that it falls within the range of 0:06:17.520 --> 0:06:22.000 reasonableness and will preliminarily approve a settlement so that the 0:06:22.160 --> 0:06:25.000 class members who are affected by a settlement can be 0:06:25.120 --> 0:06:29.000 told about the proposed settlement and their views are solicited. 0:06:29.240 --> 0:06:35.440 Occasionally a case like this, it looks to a judge like, 0:06:35.800 --> 0:06:39.159 maybe we need some more explanation before I'm even prepared 0:06:39.720 --> 0:06:43.760 to send notice of the proposed settlement to the class members. 0:06:43.800 --> 0:06:46.640 And I think one of the things that changed the 0:06:46.680 --> 0:06:49.280 way Judge Donato has looked at this case is the 0:06:49.360 --> 0:06:54.000 FTC settlement that happened in two thousand nineteen, because it 0:06:54.200 --> 0:06:58.080 stands out as a as a bell weather event, and 0:06:58.160 --> 0:07:00.520 it may have changed the way he looked at the case. 0:07:00.560 --> 0:07:02.200 It may have changed the way he looked at the 0:07:02.200 --> 0:07:05.000 merits of the case, and he said, no, I need 0:07:05.080 --> 0:07:09.520 some information, I need some explanation. Yes, fifty million dollars 0:07:09.560 --> 0:07:12.520 is a big number, but how does it stack up 0:07:12.560 --> 0:07:17.040 against what Facebook's real exposure is in this case? And 0:07:17.120 --> 0:07:19.880 so it happens from time to time that a judge 0:07:19.920 --> 0:07:23.800 will ask those questions. Sometimes the parties proceed with a 0:07:23.840 --> 0:07:27.000 settlement the way it's proposed, and on occasion the parties 0:07:27.040 --> 0:07:29.720 will modify a settlement to reflect what they think the 0:07:29.760 --> 0:07:33.400 court's concerns are. It happens from time to time, not often, 0:07:33.440 --> 0:07:36.320 but it does happen from time to time. So how 0:07:36.320 --> 0:07:39.600 does it play into this that Facebook failed to get 0:07:39.640 --> 0:07:44.280 a federal appeals court to reverse and also failed to 0:07:44.280 --> 0:07:47.920 get us to the Supreme Court to take the case. Well, 0:07:47.960 --> 0:07:52.040 obviously that that takes some of the risk from the 0:07:52.040 --> 0:07:56.600 plaintiffs and puts it onto Facebook. And and that's part 0:07:56.680 --> 0:07:58.720 of the calculus that the parties have to make when 0:07:58.720 --> 0:08:01.480 they when they look at whether to try a case, 0:08:01.520 --> 0:08:04.800 whether to settle a case, whatever it may be, and 0:08:04.800 --> 0:08:09.320 and when when Facebook tried to appeal, when Facebook tried 0:08:09.360 --> 0:08:11.760 to get the Supreme Court to take the appeal and 0:08:11.840 --> 0:08:17.040 lost those those efforts, then now they have to recalculate 0:08:17.080 --> 0:08:20.320 what they think their exposure is. And and obviously that 0:08:20.720 --> 0:08:24.640 changes what they think the the value of the cases 0:08:25.480 --> 0:08:28.880 um for them. And I and I think also again 0:08:28.920 --> 0:08:32.160 I hate to keep coming back to this, but you know, 0:08:32.679 --> 0:08:37.520 Facebook just settled a claim with the FTC for five 0:08:37.640 --> 0:08:41.839 billion dollars. They don't really need any more scrutiny. And 0:08:41.880 --> 0:08:45.600 I think that gives them even more impetus to try 0:08:45.600 --> 0:08:48.800 to settle the case. And Judge Donato is mindful of that, 0:08:48.920 --> 0:08:52.000 and I think he looks at it it says we 0:08:52.520 --> 0:08:56.559 need to take a harder look at this settlement. Is 0:08:56.600 --> 0:09:00.960 it is it fair to the to the individuals who 0:09:01.000 --> 0:09:04.720 have this right under Illinois law that we are asking 0:09:04.760 --> 0:09:07.400 them to take such a discount on what their statutory 0:09:07.440 --> 0:09:11.040 claim might be. And Facebook does have a history of 0:09:11.080 --> 0:09:16.280 settling privacy claims on the cheap, so to speak. They 0:09:16.280 --> 0:09:20.880 make good deals. Well, you know, I think that when 0:09:20.880 --> 0:09:23.560 you're when you're dealing with a company as large as 0:09:23.600 --> 0:09:27.600 Facebook and as many users as Facebook has, the numbers 0:09:27.640 --> 0:09:30.400 get very big, very fast, and so the exposure gets 0:09:30.520 --> 0:09:34.079 very big, very fast. And and Facebook is, if nothing else, 0:09:34.160 --> 0:09:39.040 they are incredibly efficient at analyzing data and calculating risk 0:09:39.080 --> 0:09:43.480 and reward. They've they've settled cases that you know, maybe 0:09:43.559 --> 0:09:47.920 look like their reasonable bargains, but I keep you know 0:09:48.000 --> 0:09:51.800 that that five billion dollar FTC settlement, even for Facebook, 0:09:51.880 --> 0:09:55.160 that's an eye popping number. And and now they have 0:09:55.920 --> 0:10:01.200 this large liability under the Illinois Biometric Privacy Act, and 0:10:01.200 --> 0:10:02.680 and they're going to have to deal with it in 0:10:02.720 --> 0:10:05.640 a way that is going to satisfy not just the court, 0:10:06.120 --> 0:10:09.120 but ultimately the class members who are going to be 0:10:09.160 --> 0:10:12.200 asked whether they support the settlement, and and they're going 0:10:12.280 --> 0:10:16.120 to have to put together a presentation that is going 0:10:16.160 --> 0:10:19.000 to have to make sense to the constituents who are involved. 0:10:19.240 --> 0:10:20.880 So whether they're going to be able to sell this 0:10:20.920 --> 0:10:24.600 case on the cheap or not, I think that their 0:10:24.640 --> 0:10:27.120 ability to do that is probably a little bit less 0:10:27.160 --> 0:10:30.080 today than it was last week, because Judge Donato says, 0:10:30.160 --> 0:10:32.560 not quite yet. Let's take a harder and look at this. 0:10:32.760 --> 0:10:36.520 We'll see what happens. Judge Donato also said a trial 0:10:36.679 --> 0:10:39.640 is not out of the question yet nothing has been approved. 0:10:40.200 --> 0:10:44.439 Would he really force them to trial when a settlement 0:10:44.800 --> 0:10:48.040 is agreed to by the parties, Well, in a case 0:10:48.120 --> 0:10:51.600 like this, where you have tens of thousands, or hundreds 0:10:51.600 --> 0:10:54.520 of thousands, or millions of users in the state of Illinois, 0:10:54.840 --> 0:10:58.640 the answer is the court has a um it has 0:10:58.679 --> 0:11:03.280 a duty to protect the absent class members, and it's 0:11:03.280 --> 0:11:06.200 going to take that duty seriously. And and right now, 0:11:06.320 --> 0:11:10.720 Judge Donato says, I'm not convinced yet that this settlement 0:11:11.040 --> 0:11:14.760 is within the range that I could approve, And and 0:11:14.840 --> 0:11:16.600 so I think it's going to be incumbent on the 0:11:16.640 --> 0:11:18.640 parties to do one or two things. They're either going 0:11:18.679 --> 0:11:22.160 to have to show Judge Donato why this five million 0:11:22.200 --> 0:11:25.559 dollar settlement is worthy of preliminary approval, and they may 0:11:25.640 --> 0:11:28.440 need to do a little bit more work to explain 0:11:28.520 --> 0:11:32.160 why they think the risk justifies the settlement, or they're 0:11:32.200 --> 0:11:36.320 going to have to modify the settlement. I would expect 0:11:36.760 --> 0:11:40.480 that Judge Donato would rather see a settlement than a trial, 0:11:41.559 --> 0:11:44.679 but it has to be a fair settlement. And and 0:11:44.840 --> 0:11:48.440 right now he is at least skeptical based on the 0:11:48.480 --> 0:11:52.559 presentation that has been made to him. And so the 0:11:53.040 --> 0:11:55.480 options that the parties have is either to improve the 0:11:55.520 --> 0:11:59.680 settlement if if that's in the cards, or to make 0:11:59.720 --> 0:12:03.880 a later showing why this settlement and this discount, if 0:12:03.880 --> 0:12:08.720 you will, from the statutory damages that could be recovered 0:12:09.160 --> 0:12:13.240 is warranted. Mark. If the judge refuses, let's just say 0:12:13.280 --> 0:12:16.760 the judge refuses to approve the settlement, can the parties 0:12:17.240 --> 0:12:22.000 appeal that If they would have no right to appeal it, 0:12:22.120 --> 0:12:25.440 they could they could seek permission to appeal it. I 0:12:25.480 --> 0:12:28.960 think it would be unlikely that an appeal would be 0:12:29.000 --> 0:12:31.960 taken by the by the Ninth Circuit, I think here 0:12:32.200 --> 0:12:36.800 it's the decision whether to approve or reject a proposed 0:12:36.800 --> 0:12:41.520 preliminary settlement that falls squarely within the District Court's discretion. 0:12:42.440 --> 0:12:47.120 And and I think Judge donato Is is just simply 0:12:47.160 --> 0:12:50.680 doing what is appropriate for him under these circumstances. He's 0:12:50.760 --> 0:12:53.880 asking questions that need to be answered, and the answer 0:12:53.920 --> 0:12:56.679 has two different paths. It could take. One path is 0:12:57.240 --> 0:13:00.040 we have reasons that we haven't explained for wing to 0:13:00.160 --> 0:13:02.600 why this is a good settlement, and then they choose 0:13:02.640 --> 0:13:05.920 that path. Or the other path is Judge, we've heard you, 0:13:05.960 --> 0:13:08.600 We've gone back, we've taken a harder look at what 0:13:08.640 --> 0:13:11.880 the risks are, and we've decided to raise the settlement 0:13:11.920 --> 0:13:15.600 consideration to X dollars. And either one of those paths 0:13:15.640 --> 0:13:19.120 could lead to a preliminary approval, but I think that 0:13:19.240 --> 0:13:23.440 the path to an appellent review is incredibly steep. Thanks Mark. 0:13:23.800 --> 0:13:28.440 That's Mark riskin a partner We'll call and seen. For months, 0:13:28.480 --> 0:13:31.319 federal courts across the country have been shuttered due to 0:13:31.360 --> 0:13:34.559 the pandemic, but the doors of federal court houses are 0:13:34.640 --> 0:13:38.480 slowly starting to swing open with the convening of socially 0:13:38.600 --> 0:13:42.520 distanced grand juries. These are the jurist task with deciding 0:13:42.559 --> 0:13:46.400 whether to issue criminal indictments, joining me as Madison Alder 0:13:46.440 --> 0:13:49.760 Bloomberg Law reporter. So, Maddie, is it just the grand 0:13:49.800 --> 0:13:52.480 juries that are going to be brought back in and 0:13:52.679 --> 0:13:55.640 if so, how many? So it's for now, it's just 0:13:55.760 --> 0:13:57.880 grand juries, and in a few of these places. But 0:13:57.960 --> 0:14:02.160 you know, we've seen dates projected for jury trials in 0:14:02.559 --> 0:14:05.839 courts um all across the nation. I mean, we saw 0:14:05.960 --> 0:14:09.840 that the Northern District of California was projecting jury trials 0:14:09.920 --> 0:14:13.000 to take place in the fall, Western District of Washington 0:14:13.120 --> 0:14:16.360 is protecting that they might take place at the end 0:14:16.400 --> 0:14:18.640 of the year to early next year. And those are 0:14:18.679 --> 0:14:21.960 two extreme examples, but in a lot of areas, grand 0:14:22.000 --> 0:14:27.000 juries or the precursor to jury trials eventually taking place. 0:14:27.000 --> 0:14:32.000 So grand juries are are now can happen in ten 0:14:32.640 --> 0:14:35.920 of the ninety four federal district courts, at least ten 0:14:36.080 --> 0:14:39.080 of the ninety four federal district courts. Uh, And you know, 0:14:39.160 --> 0:14:41.760 I'm sure it'll only go up from there before we 0:14:41.920 --> 0:14:46.600 get into specifics about them coming back explain the role 0:14:46.680 --> 0:14:50.600 of the grand jury in our legal system. So the 0:14:50.680 --> 0:14:54.400 grand jury is typically made up of sixteen to twenty 0:14:54.440 --> 0:14:58.120 three people normal jury is six to twelve repetite jury 0:14:58.200 --> 0:15:01.560 should say, uh. In a grand jury, their role is 0:15:01.720 --> 0:15:04.920 to review the evidence in the case, review the fact 0:15:04.920 --> 0:15:07.160 of the case, uh, and come to a determination on 0:15:07.200 --> 0:15:11.000 an indictment. UM. It is very easy to get an 0:15:11.000 --> 0:15:14.560 indictment through a grand jury. UH. You know, there's there's 0:15:14.560 --> 0:15:17.200 a joke in the legal space that you could indicte 0:15:17.240 --> 0:15:21.520 a ham sandwich. Um. And so it's it's one of 0:15:21.520 --> 0:15:25.720 those things that uh, it often gets I think a 0:15:25.760 --> 0:15:29.520 connotation that it's just another step in the process. UM. 0:15:29.520 --> 0:15:31.480 But you know, I did have sources tell me that 0:15:31.600 --> 0:15:35.440 it is. It is an important part of community involvement 0:15:35.520 --> 0:15:37.840 in these cases, and it is important in cases where 0:15:37.840 --> 0:15:42.560 evidence might be lacking. And speaking of community involvement, how 0:15:42.560 --> 0:15:45.280 do they intend to get a fair cross section of 0:15:45.320 --> 0:15:48.920 the community in these times? So that was one of 0:15:48.920 --> 0:15:52.320 the concerns that defenders brought up to me, criminal defense 0:15:52.320 --> 0:15:54.480 attorneys excuse me, brought up to me when I was 0:15:54.520 --> 0:15:57.640 talking to them. You know, if if you are a 0:15:57.640 --> 0:16:01.760 healthcare worker, or you're in a high risk uh you're 0:16:01.880 --> 0:16:05.120 you're at high risk for the coronavirus um or you 0:16:05.160 --> 0:16:07.360 know a number of different factors, you might be easily 0:16:07.360 --> 0:16:10.000 excused from a grand jury. Uh. And that means that 0:16:10.040 --> 0:16:13.800 you're you're limiting a certain section of the community from 0:16:13.800 --> 0:16:17.080 being involved. So that is a concern for defense attorneys. 0:16:17.120 --> 0:16:19.640 But the courts I talked to you that are doing this, Uh, 0:16:19.680 --> 0:16:21.360 you know, I talked to the Middle District of Georgia. 0:16:21.480 --> 0:16:24.000 I talked to the District of Montana. Both of them 0:16:24.640 --> 0:16:28.120 have reached out to jurors. They've engaged with them, uh, 0:16:28.160 --> 0:16:30.520 and and try to figure out you know, at least 0:16:30.520 --> 0:16:32.880 from Montana's sake, they were trying to get jurors back 0:16:33.400 --> 0:16:38.080 who were entangled before everything happened in March, So they 0:16:38.080 --> 0:16:39.520 were trying to get them back to the court and 0:16:39.880 --> 0:16:42.840 they were you know, contacting them, making sure that that 0:16:43.200 --> 0:16:47.680 the proceedings that they decided on could benefit those those 0:16:47.760 --> 0:16:50.320 jurors when they came back in. So courts are really 0:16:50.440 --> 0:16:52.560 you know, making the effort. But it is definitely a 0:16:52.600 --> 0:16:56.480 concern for defense journeys to So, now, how will the 0:16:56.520 --> 0:17:01.320 grand jurors be seated? How will they listen to the recedings. So, 0:17:02.120 --> 0:17:04.800 like everything with a pandemic, it's different from court to court. 0:17:05.359 --> 0:17:08.240 But some of the creative ways that we're seeing courts 0:17:08.240 --> 0:17:11.639 to do this are splitting up stars into different rooms, 0:17:12.119 --> 0:17:14.960 different courthouses. Even that's what Montana did when they did 0:17:14.960 --> 0:17:17.679 their grand jury at the beginning of May. They split 0:17:17.760 --> 0:17:21.800 up members of this jury into three different courthouses, three 0:17:21.800 --> 0:17:25.320 different cities, and they connected them via video. Now, not 0:17:25.440 --> 0:17:28.440 every courthouse is doing things that are that extreme. Uh. 0:17:28.600 --> 0:17:32.359 Their district Middle District of Georgia, uh is planning to 0:17:32.520 --> 0:17:34.880 just spread people out among different rooms of the same 0:17:34.920 --> 0:17:38.960 courthouse and similarly do that video connection. Um. But you know, 0:17:39.040 --> 0:17:42.000 I've seen other courts mentioned that they're going to be 0:17:42.119 --> 0:17:48.640 using larger rooms, separating people out through a larger ceremonial courtroom. Uh. 0:17:48.680 --> 0:17:50.480 So there are a number of different ways courts are 0:17:50.600 --> 0:17:54.000 approaching this. The over watching element of importance to a 0:17:54.040 --> 0:17:56.960 grand jury is grand jury secrecy. So we hear this 0:17:57.040 --> 0:18:01.320 time and time again. How do they maintain secrecy if 0:18:01.400 --> 0:18:03.919 it's on video or they concerned that there might be 0:18:04.119 --> 0:18:07.600 hacking or someone else might be in a room? That 0:18:07.720 --> 0:18:10.960 is definitely I mean, there are concerns with grand jury's secrecy, 0:18:11.040 --> 0:18:15.000 with some of these procedures that they're they're adopting during 0:18:15.000 --> 0:18:17.560 this time. One of the ones that I've heard from 0:18:17.640 --> 0:18:21.439 defense attorneys, is potentially having a larger room you just have, 0:18:22.080 --> 0:18:26.560 you know, more likelihood that these proceedings might be more 0:18:26.600 --> 0:18:29.400 out front in the courtroom than they'd like. Doom has 0:18:29.520 --> 0:18:32.600 has had issues with its secrecy, so that that could 0:18:32.600 --> 0:18:36.040 definitely be a concern. But I know that at least 0:18:36.040 --> 0:18:39.120 for the Middle District of Georgia, the U S Attorney 0:18:39.160 --> 0:18:42.359 there told me that they're going to be stationing marshals 0:18:42.400 --> 0:18:45.240 outside each one of these individual courtrooms to make sure 0:18:45.320 --> 0:18:48.960 that grandjury secrecy is protected. So, Maddie, are these grand 0:18:49.040 --> 0:18:52.000 jury is going to be able to ask questions and 0:18:52.080 --> 0:18:56.520 deliberate in the way they normally do. So each one 0:18:56.800 --> 0:18:59.800 of these grand juries will have be able to do 0:19:00.040 --> 0:19:03.600 each one of their requirements through through the video proceedings, 0:19:03.600 --> 0:19:05.480 I know in a few of these cases. So that's 0:19:05.560 --> 0:19:10.640 asking questions, that's deliberating, that's coming to a determination in 0:19:10.720 --> 0:19:13.560 the in the case. So um, you know, for the 0:19:13.560 --> 0:19:15.760 courts that are starting these juries back up, they say 0:19:15.800 --> 0:19:18.560 that you can do every single part of grand jury 0:19:18.600 --> 0:19:21.880 remotely that you could when you're you're doing it all 0:19:21.960 --> 0:19:25.080 in person. It may be a substitute for the grand 0:19:25.119 --> 0:19:28.560 jury process, but there might be constraints on some of 0:19:28.600 --> 0:19:33.399 the jurors because they're on video, or some of the 0:19:33.440 --> 0:19:36.840 witnesses because they're on video, and it sounds like there's 0:19:36.960 --> 0:19:41.600 a lot of details that might make it a stilted 0:19:41.680 --> 0:19:46.520 kind of process. That's a concern for defense attorneys for sure. 0:19:46.760 --> 0:19:49.520 I spoke with with one defense attorney who told me 0:19:49.600 --> 0:19:53.719 that just the sheer fact of something being on video 0:19:53.920 --> 0:19:56.840 and a juror potentially not being able to see the 0:19:56.920 --> 0:20:01.439 face of a witness or you know, someone's reaction to 0:20:01.480 --> 0:20:05.960 a question or um, just that disconnect I mean, she says, 0:20:05.960 --> 0:20:09.159 that disconnects you from the gravity of the situation. And 0:20:09.800 --> 0:20:12.160 that's a that's a big concern for defense attorneys, even 0:20:12.200 --> 0:20:15.320 when it comes to potential use of video and jury trials. 0:20:15.840 --> 0:20:18.800 Um that's being talked about, and that's another thing that 0:20:18.840 --> 0:20:23.000 they're concerned about, is having this disconnect of the people 0:20:23.040 --> 0:20:26.480 who are supposed to be, you know, judging the facts 0:20:26.480 --> 0:20:30.439 of the case and coming to their own conclusion, distances 0:20:30.520 --> 0:20:33.960 them from the material that they're listening to. Are any 0:20:34.000 --> 0:20:38.280 of the judges concerned that after a grand jury returns 0:20:38.280 --> 0:20:42.960 an indictment that a defense attorney will challenge because of 0:20:43.000 --> 0:20:46.639 the way the grand jury process was structured. So the 0:20:46.640 --> 0:20:49.360 courts I talked to are not really concerned. But as 0:20:49.400 --> 0:20:52.200 they say that, there's a big amount of flexibility that 0:20:52.400 --> 0:20:55.760 is afforded to grand juries and how they proceed. Uh, 0:20:55.880 --> 0:20:59.159 so they're confident that these procedures are legally found or 0:20:59.200 --> 0:21:04.040 reasonably comp that these procedures are legally sound. Um, you know, 0:21:04.119 --> 0:21:07.520 but that doesn't mean some creative lawyer can come along 0:21:07.600 --> 0:21:12.040 and and and challenge and challenge one of these indictments. UM. 0:21:12.080 --> 0:21:15.080 I haven't heard anything to that effect, but you know, UM, 0:21:15.600 --> 0:21:17.800 I'm sure it's not out of the question. Did any 0:21:17.840 --> 0:21:20.440 of the judges tell you the reason they were starting 0:21:20.480 --> 0:21:23.720 the grand juries up again was a fear that statute 0:21:23.720 --> 0:21:26.960 of limitations would run out. That is a major consideration 0:21:27.000 --> 0:21:31.200 to statutes of limitation, and with the Speedy Trial Act. 0:21:31.680 --> 0:21:34.280 You know, I heard from one federal judge who told 0:21:34.320 --> 0:21:37.080 me that this is not something that they know that 0:21:37.160 --> 0:21:40.160 they they're not sure how long that this could they 0:21:40.160 --> 0:21:44.560 can keep issuing these orders that suspend statutes of limitation 0:21:44.680 --> 0:21:47.840 and to spend the Speedy Trial Act. Um, A lot 0:21:47.840 --> 0:21:52.560 of courts, right after the pandemic happened, started suspensions of 0:21:52.600 --> 0:21:55.879 the Speedy Trial Act, and you know, there's a question 0:21:56.400 --> 0:21:58.679 out there as to whether or not those proceedings are 0:21:58.760 --> 0:22:02.280 legally sound. UH. I talked to a lot professor who 0:22:02.359 --> 0:22:05.600 told me that there is a good chance that those 0:22:05.640 --> 0:22:08.560 could be challenged, those kind of orders that are suspending 0:22:08.920 --> 0:22:12.480 of those really important deadlines. Were all the federal courts 0:22:12.640 --> 0:22:17.560 basically closed for the last few months during the pandemic? 0:22:17.600 --> 0:22:20.480 In other words, were there any grand juries that were 0:22:20.480 --> 0:22:24.800 operating at all? The short answers? It's very hard to tell. Um. 0:22:24.840 --> 0:22:27.040 You know, when we're looking at federal courts, we're looking 0:22:27.200 --> 0:22:30.680 at UH court orders that come out, but grand juries 0:22:30.720 --> 0:22:35.600 are secretive, and if it's not reflected in a general order, UM, 0:22:35.640 --> 0:22:38.600 we might not see it. So from what we know, 0:22:39.160 --> 0:22:42.879 there has been at least one jury trial that that 0:22:43.000 --> 0:22:46.560 happened during the pandemic, and then there was the grand 0:22:46.640 --> 0:22:50.359 jury in Montana that happened at the beginning of May. UM. 0:22:50.520 --> 0:22:53.520 But you know, other than that, it is very hard 0:22:53.560 --> 0:22:57.520 to tell what's happening in in all ninety four federal 0:22:57.560 --> 0:23:01.439 district courts because they are so independent from one another, 0:23:01.920 --> 0:23:05.080 and it is very different when it comes to how 0:23:05.200 --> 0:23:09.800 they update their procedures and what's going on on their calendar, 0:23:09.880 --> 0:23:12.760 on their website. You know, I'm also wondering are they 0:23:12.880 --> 0:23:17.719 fitted to do this video conferencing basically video conferencing, I mean, 0:23:17.760 --> 0:23:21.080 have they had to install equipment? And are some courts 0:23:21.119 --> 0:23:23.439 ahead of other courts on that. Some courts in the 0:23:23.440 --> 0:23:28.639 beginning mentioned adopting new video procedures, and you know, I 0:23:28.640 --> 0:23:30.560 know a lot of courts have mentioned that they're using 0:23:30.600 --> 0:23:34.119 things like Zoom. But I I'm sure that this is 0:23:34.119 --> 0:23:36.440 prompting a lot of courts to take another look at 0:23:36.960 --> 0:23:41.879 their their video equipment and try to to revamp it 0:23:42.320 --> 0:23:44.320 to make sure that they can still do these kind 0:23:44.359 --> 0:23:48.359 of proceedings. This is part of a four phased approach. 0:23:48.600 --> 0:23:53.159 Tell us about that approach. So the Administrative Office of 0:23:53.200 --> 0:23:56.360 the Court, they're released a guidance from the Judicial Conference 0:23:57.160 --> 0:24:00.160 that basically said, you know, here's how you can start 0:24:00.200 --> 0:24:03.520 reopening uh, and that was you know, it's got four 0:24:03.600 --> 0:24:07.119 different phases. In the first two phases, grand juries are 0:24:07.160 --> 0:24:10.760 included in both of those, so courts have the option 0:24:10.920 --> 0:24:14.399 to start grand juries. Um. And and it really is 0:24:14.600 --> 0:24:20.600 each of these phases is uh, it's determinative on what 0:24:20.760 --> 0:24:24.640 the health situation is in the community that that court 0:24:24.720 --> 0:24:27.600