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CAMDEN – Attorneys representing Cumberland County Jail inmates are free to craft a new method for searching staff computers and phones for data about a May 11, 2021 cell block “shakedown,” one allegedly ordered as retaliation for an ongoing civil rights lawsuit.
U.S. District Court Judge Noel Hillman, at a hearing here on Tuesday afternoon, directed plaintiffs’ attorney Jeffrey Pollock to draft a search protocol. His proposal is expected to be ready by Friday.
Attorneys for inmates suspect that a keyword-based forensic analysis, done over several months on county and staff personal equipment last year, did not discover everything that might be useful to their case. They want a more refined analysis, while the county is arguing nothing relevant, or at least admissible, is left to find.
In 2021, the county hired forensics expert, attorney, and private investigator Jeff Brenner for that work. Brenner and his team also did manual searches of data “threads,” according to testimony.
What might remain undisclosed is suspected to include unflattering references to inmate attorneys as well as the judge, according to Pollock. That kind of information would be used at trial to undermine the credibility of county officials, he told the court.
Pollock has been seeking to obtain draft reports Brenner submitted, but the county has contested the request. Pollock told the court that, because of that, he has given up that pursuit to switch his focus to getting "raw" data.
Hillman was cautious about allowing an overly broad investigation. He is giving the county a chance to review the search protocol and make objections before it is implemented.
The judge retains the final say on whether to exclude data as irrelevant or protected by attorney-client, medical privacy, or other reasons.
“He’s wanting unfettered access to the computers of the county, to the cellphones of the county, without any filter of any kind,” county attorney Gregg Zeff said. “And your honor has hit it right on the head. There are many, many irrelevant things in there.”
Hillman, however, also gave Pollock the liberty to hire his own expert this time and to develop a strategy to conduct a search.
“I want you to tell Mr. Zeff the search protocol, so that he can have an opportunity to object to it,” Hillman said. “But I want you to be able to design that search on your own, with someone whose technical abilities you trust and with whom you have rapport. I want the product of that to be turned over to Mr. Zeff, prior to you seeing it. You want to send a copy to me.”
Hillman said any objections the county then makes to releasing data will have to be “surgical,” filed reasonably quickly, and done document by document.
“And you can argue at that time … any waiver or any other issue that would eliminate the privilege,” Hillman told Pollock. “But I think that’s the only fair way to do this.”
Pollock agreed but under strong protest. He argued he was entitled to as much access as the county has now, that the county had missed its window to register objections, and the county still could conceal information.
“So, now, I follow your advice and I hire an expert and I pull together material,” Pollock said. “But I can’t see it. And Mr. Zeff raises all the same arguments we have right now. Right? And I still don’t know what it is. … I don’t know what it is that is so important. All I know is Mr. Zeff is jumping up and down objecting, saying, ‘Pollock can’t have it.’”
Hillman, however, stressed that the court also would be part of the review process.
"I’ll see it," Hillman said. "And I’ll hear the waiver argument. And the search would have been done based on your overseeing that search, not Mr. Zeff."
Hillman also offered court funding for the search, if needed. He noted Pollock and his legal team are representing inmates for free and should not face too much of a cost burden.
The district court now is more than a year into handling the lawsuit, which first was brought over concerns about COVID-19 health and safety issues.
The parties, under court supervision, have reached compromises on some points. However, reaching a final form of a consent order that can be integrated in jail operations is proving difficult.
On Jan. 5, both sides told Hillman they thought they were close to an agreement on most points and quickly could submit a partially updated agreement.
However, Pollock said on Tuesday, there is some dispute about whether Zeff submitted to the court the correct proposal. His team believes what Zeff turned in was a draft document.
Zeff said he believed he had submitted the correct paperwork. The hearing ended without the matter resolved.
The jail shakedown has opened a branch dispute in the case that may linger on after the original COVID-19 issues are settled. The next hearing on the shakedown discovery issues is on Jan. 21.
A related issue Hillman has to decide is whether current and former jail staff can claim a 5th Amendment protection to not submit their equipment for forensic exam.
Former Warden Charles Warren has refused to provide his personal phone, which was not examined in last year's investigation.
Corrections Capt. Loren Joynes did allow his phone do be searched in 2021, but he now is asserting a 5th Amendment right to bar further examination. He also is refusing permission to examine his laptop.
Hillman heard arguments on Jan. 5 on the 5th Amendment claims. The judge asked attorneys to file short briefs before he issues a decision, stating he wanted to quickly issue a ruling. Those briefs were filed last week.
After the Jan. 5 hearing, Pollock told The Daily Journal he separately was issuing subpoenas to Verizon and AT&T for access to Warren’s personal phone.
Pollock said the providers may or may not have retained useful information. “But I really don’t need it,” he said.
Pollock said his case is significantly bolstered by senior jail staff claiming 5th Amendment privileges. Their refusals alone can be used to attack the credibility of the county, he said.
Joe Smith is a N.E. Philly native transplanted to South Jersey more than 30 years ago, keeping an eye now on government in South Jersey. He is a former editor and current senior staff writer for The Daily Journal in Vineland, Courier-Post in Cherry Hill, and the Burlington County Times.
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This article originally appeared on Vineland Daily Journal: New data search of Cumberland jail staff computers, phones planned