14.5 million files delay trials of those accused of YDC abuse
Judge issued order to schedule the trials, move the cases forward
Nearly two years after 10 former Youth Development Center employees were charged with sexually abusing youth at the state-run juvenile detention facility, trials have yet to be scheduled.
What has caused the delay in setting trial dates is more than 14.5 million digital and other files, including hand-written documents, concerning YDC and the youth allegedly abused over 13 years, from 1994 to 2007.
An order issued last week by Judge N. William Delker, presiding in Hillsborough County Superior Court Northern District where the 10 defendants will be tried, aims to move the cases along and finally schedule the trials.
In his final order regarding digital discovery, dated June 6, 2023, Delker explained New Hampshire has no rule of criminal procedure governing production of discovery in the form of electronically stored information (ESI).
“The dispute here revolves around how to make the large volume of ESI available to the defense in a manner that is practical to search and organize. The parties disagree about the best manner to accomplish that goal,” he wrote.
The discovery consists of two groups: 14,595,819 digital files extracted from 96 New Hampshire Department of Health and Human Services’ hard drives, called the “Harddrive Discovery.”
The other group consists of 1,777,602 pages from a variety of sources, the bulk of which have been scanned (Scanned Discovery). However, the majority appear to be handwritten documents which cannot be converted to text through optical character recognition (OCR) processing.
The defense and prosecution agreed to use the state’s e-discovery platform called Relativity to review and organize the Harddrive Discovery.
The judge said the State – through Shaheen Phinney – has already spent considerable time and money to cull the hard drives of irrelevant files, reducing the volume from nearly 77 million files to about 14.5 million files.
Delker said it would be a duplicative and unnecessary expense for the defense to upload the contents of the 96 hard drives to its own platform. He also said it was not feasible to extract the 14.5 million files from Relativity to be loaded on the defense’s own e-discovery platform.
“Finally, to allow that volume of discovery to be stored on two separate databases would be a considerable cost with little or no added benefit to the defense’s ability to prepare for trial,” the judge said.
He said the defense can search, review and code or tag discovery with five top folders and an unlimited number of subfolders. “This provides the defense abundant flexibility to identify and organize the relevant files on the Harddrive Discovery without unnecessary expenditure of resources,” Delker said.
The Scanned Discovery is a more difficult problem. The prosecution, Delker said, identified 12,641 files – “hot documents” — it believes are most relevant to the cases. The “hot documents” are part of the Scanned Discovery upon which the state’s cases are built. However, most of the Scanned Discovery, unlike the Harddrive Discovery, is not full-text searchable.
The State added coding to 853,785 documents to help research, sort, organize and identify relevant discovery of those files. The prosecution offered the defense access to its coded documents through the Relativity database. The defense wants to review and process the Scanned Discovery on its own e-discovery platform called Casepoint.
The defense asked the court to order the state to extract the coded files from Relativity so that discovery together with the coding can be imported into Casepoint. The state objected.
The judge said if the defense is obligated to rely on the state’s Relativity database, the defense team would also be required to channel all questions, requests, modifications, or other inquiries relating to Relativity through the state’s chosen experts, Shaheen Phinney. He said the state conceded that the Attorney General is Sheehan Phinney’s client and they maintain an attorney-client relationship with the law firm.
“The defense is certainly entitled to its own e-discovery expert to help defense counsel formulate strategies for searching and organizing the data for trial,” Delker said. He also said forcing defense lawyers and their expert to go through the state’s e-discovery expert as they use the Relativity platform creates a substantial risk of delay and potential for miscommunication.
“Like the state, the defense lawyers should be able to process discovery with their own expert directly on their own discovery platform without having to work through Shaheen Phinney as an intermediary,” Delker said.
He ordered the state to make the Harddrive Discovery available to defense to begin searching through Relativity immediately. He approved funds for one software license for each defense team to access Relativity and will approve funds for services required of Sheehan Phinney to make the platform accessible to the defense teams.
Delker also ordered the state to produce coded files from the Scanned Discovery, to begin production as soon as feasible and provide the extracted data to the defendants’ e-discovery consultant on a rolling basis as it becomes available.
The defense e-discovery consultant is to promptly upload the coded Scanned Discovery production to Casepoint.
Within 45 days, both parties are to submit proposed trial dates and deadlines for motions and expert disclosures.
The defendants in the 10 cases in Hillsborough County are authorized collectively to enter into a contract for the Casepoint e-discovery platform at a cost of $122,000.
The defendants are:
Bradley Asbury, 68, Dunbarton; Jeffrey Buskey, 56, Quincy, Mass.; Frank Davis, 81, Contoocook; Stephen Murphy, 57, Danvers, Mass.; Lucien Poulette, 67, Auburn; Gordon Thomas Searles, 67, Weare; James Woodlock, 58, Manchester; Jonathan Brand, 58, Concord; Trevor Middleton, 54, Belmont; Stanley Watson, 54, Allenstown.
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