Can eDiscovery Free Britney?

DISCLAIMER: This article revolves around an ongoing case where many specifics are sealed from the public. Much of it is speculation intended to educate, and should not be taken as any kind of legal advice. 

In 2008, one of the most famous people in the world was placed under a conservatorship shortly after having one of the most famous public breakdowns in the world.

That person was of course Britney Spears, and that conservatorship is still in place 13 years later. Over the last couple years, the legal arrangement has come under more public scrutiny, especially as it seems clearer and clearer that Britney herself is dissatisfied with the current arrangement. While most of the details of this court case are sealed from the public, it’s safe to assume that someone, somewhere is sifting through electronically stored information (ESI) looking for answers.

Some Quick Background

Conservatorships, or guardianships as they are referred to in some states, allow for the court to place another person in charge of a legal adult’s personal and/or financial affairs. They exist to protect those whose mental faculties may not be fit for high stakes decision making, such as elderly people with dementia or Alzheimer’s disease, or younger people with developmental disabilities.

As the self-proclaimed #FreeBritney movement has gained more traction online, more and more people are asking the question… “how can someone who spent much of the last decade putting out new music and performing regularly also be so incapacitated that she can’t be trusted to make decisions for herself?”

Different people have drawn different conclusions. Many in the #FreeBritney camp believe that Britney isn’t really sick enough to justify the conservatorship going on this long, but her father/co-conservator Jamie Spears makes too much money off the status quo to let his daughter have more autonomy.

According to a 2016 article in the New York Times, Jamie makes a yearly salary of $130,000 as conservator, and he also got to take home 1.5% of the gross revenue for her Las Vegas residency. In 2018, Billboard reported that gross revenue number was $137,695,392, which would make Jamie’s cut a little over $2 million.

On the other side of the coin, some close to Britney reject this as conspiracy theories spawned by outsiders who don’t know enough about Britney’s mental health or legal case for their claims to hold any water. They say removing the conservatorship could risk another potentially life-threatening breakdown a la 2007-2008. They point to the comparative stability since as evidence that the conservatorship is doing its job.

At the time of this writing, Britney’s team has not filed a petition to end the conservatorship altogether. However, it does seem clear that she wants her father removed from his role. Jamie Spears served as co-conservator from the beginning of the arrangement in 2008 until 2019 when his own health issues forced him to step aside. At this point, the courts appointed temporary co-conservator Jodi Montgomery, and Britney unsuccessfully tried to make this change permanent. According to Britney’s lawyer, “it’s no secret that [his] client does not want her father as co-conservator.”

So Why is The Britney Conservatorship Case So Complicated?

The conservatorship has been in place for 13 years, and technology has evolved at a rapid pace during that time. There’s also the fact that the case centers around someone who may have had varying levels of mental stability throughout those 13 years. Should Britney’s communications with other parties be taken seriously or not? It might take mental health expert witnesses to bolster either side’s case, and that’s an additional logistic concern for legal teams.

You also have to consider that (as far as the public knows) virtually everything Jamie did over these 13 years was technically legal. Britney’s team isn’t necessarily looking for evidence of a specific crime per se. Instead, they have to look for evidence that Jamie’s choices regarding Britney’s affairs were unjust enough that the courts should reconsider their previous arrangement.

Those unjust choices could take different forms. You could argue that Britney’s illness was bad enough that Jamie shouldn’t have approved the amount of work Britney did during this time frame. Since the conservatorship began, she’s put out four studio albums, done two world tours, and a Las Vegas residency consisting of 248 performances over 4 years. She was also in the process of planning and rehearsing for a second Vegas residency which was canceled in early 2019. One potential strategy is to argue that Jamie exercised poor judgement in letting someone so mentally ill take on such an ambitious workload.

You could also argue a case that directly contradicts that one: that Britney was well enough to be recording and performing regularly, but that she was so healthy in fact that the conservatorship should have been phased out long ago. Jamie shouldn’t be allowed to deprive a reasonably healthy Britney of rights that any other reasonably healthy adult is legally entitled to.

Either strategy would require a team to establish a multi-year narrative assembled from bits and pieces of data scattered across the digital landscape. The same is true if you’re on Jamie’s team. They’ll be trying to show that Britney really does still need a conservator, but that any work she did over the last 13 years posed a low enough risk to her mental health that a conservator could reasonably allow it.  

Such long-term patterns are often a far harder thing to prove than one clearly defined “crime.” That gives discovery teams far less specific parameters to guide their search for relevant data.

The Longer the Story, the Trickier Discovery Gets.

Britney Spears’s conservatorship began in 2008. Think of how we communicated back then. The first iPhone had only launched one year prior, and many people were still using flip phones. Camera phones were relatively new to the scene as well. Pictures weren’t always great quality, and phones weren’t always built with enough memory to also function as multi-year photo archives. While cloud technology had existed for decades, tech giants like Amazon, Microsoft, and Google were only just beginning to experiment with large-scale implementation.

That means that more conversations happened over regular phonecalls than text messages, and those are harder to capture. It meant people were more likely to delete messages and photos regularly since they didn’t have easy access to cheap cloud storage. It also means we didn’t have all the cloud backups that sometimes function as data safety nets in modern cases. These are all factors that any discovery team has to consider whenever a matter has gone on this long.

Alright, but what about her phone from more recent years?

Nowadays, the public has no way of knowing what kinds of electronic devices Britney has access to, or how much oversight other people have over her device usage. In 2019, TMZ claimed that Britney only had a flip phone and wasn’t allowed internet access. Whether that’s true or not, it poses some unique challenges for the discovery professionals on Britney’s case team.

Imagine collecting data from a device, but still having to wonder who really typed this message if not the primary custodian? If Britney’s phone usage really is highly regulated by her conservator, was she potentially able to communicate on other phones behind their backs? Could there be valuable ESI hiding on other devices we might not usually think to collect?

Then there’s the conversations that don’t involve Britney directly. The ones between her conservators and other members of her management team; the ones between conservators and medical personnel; the ones between her team and other relevant parties such as Caesars Entertainment, the company that signed her to the aforementioned Vegas residency.

It’s quite easy to imagine messages that are either proof Britney is a victim of conservatorship abuse or proof that Britney’s mental state is still unstable enough to justify continuing the current arrangement. It all depends on which side you’re trying to argue.

Maybe there’s a way for teams to cross-reference messages with medical reports or other custodians’ messages to give validity to Britney’s version of events. Maybe there isn’t. Either way, it’s not going to be easy. Legal teams have the difficult choice of what rabbit holes are worth their time and how far they should go before picking another strategy.

Good eDiscovery tells a complete story.

In eDiscovery, sometimes one single piece of evidence is enough to back up your side’s entire case. It’s also quite common that case teams have to build a case from the ground up. They find pieces of ESI that would never mean much individually. Sometimes these seemingly random puzzle pieces were scattered across multiple devices or were generated years apart from each other. It’s only when a skilled discovery team brings those pieces together that they have any legal significance.

This is a challenge for both sides in the Britney conservatorship debacle. Again, this case isn’t really about one isolated “crime.” That makes it really hard to imagine what a “smoking gun” would even look like.

Instead, this case is all about inner workings of both personal and business relationships over 13 years. There likely won’t be any single piece of data that can prove either Britney or Jamie’s version of events is correct, at least not by itself. Instead, teams on both sides have to string multiple data points together into a story that makes sense to a judge.

So how does an eDiscovery team come in handy?

There’s a lot of decisions to be made, and none of them have easy answers. First there’s the question of what documents you think are going to be most relevant. You oftentimes need a general idea of what your strategy is before you’ve seen all the data, that way you can convince a judge that the right documents should be included in discovery. Conversely, you might argue that certain documents that would be more helpful to your opposition than to you shouldn’t be included. 

You also have to weigh the odds that maybe you can find deleted or encrypted data that isn’t immediately obvious on the surface. Is it worth the resources to include certain devices in your search even when you know they might not give you anything useful?

There’s also the chance that as you get deeper and deeper into discovery, you may have to pivot to new strategies. Sometimes documents that you thought would be helpful aren’t. Even if everything is going according to Plan A, it takes a staggering level of precise coordination to turn a decade’s worth of communication between numerous parties into something that can be presented in court. Reviewers code documents as they go so that project managers can see trends emerge, even if those documents weren’t initially assigned to the same reviewer. 

All of these are areas where lawyers can gain valuable insight by consulting discovery experts. Service providers don’t just exist to take your data and give it back to you in a reviewable form; they can help you navigate the complex minefield of decisions that comes along with any case, and make sure your discovery strategy aligns with your larger legal strategy. They can also help you adapt as more information comes to light and the case inevitably evolves. Good service providers can keep the circus of discovery from driving you crazy before things get too toxic.

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