ESI in Criminal Actions Meets the Fourth, Fifth - Crowell & Moring

E-Discovery in
Government Investigations and
Criminal Litigation
August 21, 2012
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Panelists
• Ron Hedges: Moderator
• Judge Thomas Vanaskie
• Andrew Goldsmith
• Douglass Mitchell
• Justin Murphy
• Sean Broderick
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Materials Available for Download:
• Bloomberg BNA Digital Discovery & e-Evidence article: “Joint Federal Criminal E-Discovery Protocol Places
Cooperation Above Motion Filings”
• JETWG paper: “Recommendations for Electronically Stored Information (ESI) Discovery Production in
Federal Criminal Cases”
• Forms of production chart
• Georgetown Law Journal article: “In the Digital Age, Ensuring That the Department Does Justice”
• Text of In re Boucher
• Text of United States v. Meregildo
• Text of United States v. Skinner
• Article addressing JETWG protocol
• Article regarding New Jersey criminal rule
• Article regarding proposed federal legislation
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Key Topics for Discussion
• ESI and Subpoenas
• ESI and The Fourth Amendment
• Post-Indictment Discovery of ESI
• Use of Social Media
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Subpoenas
• The duty to preserve can come before the subpoena
– 18 U.S.C. § 1519 (“in contemplation of”)
– Government has a duty to preserve all material exculpatory
evidence. U.S. v. Branch, 537 F.3d 582 (6th Cir. 2008);
– U.S. v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 19, 2010) (adverse
inference sanction for deletion of text messages between FBI
agents and cooperating witness).
• Direct and collateral consequences for failing to preserve
• Spoliation may be potential crime in and of itself and be
used to prove consciousness of guilt for underlying crimes.
• Discussions with government – identify and avoid
problems.
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Fourth Amendment
• Search Warrants
• GPS Monitoring
• Cell Phone Search
and Seizure
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Digital Evidence Search Warrants
• Collision between Fourth Amendment’s
particularity requirement, plain view doctrine,
and search and seizure of digital evidence
where every file could potentially contain
evidence identified in warrant
• Over seizure creates risk of general warrant
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U.S. v. Comprehensive Drug Testing
• Where officers come across relevant documents
so intermingled with irrelevant documents that
they cannot feasibly be sorted at the site, large
scale removal can be justified
• A Magistrate Judge should then approve the
conditions and limitations on a further search
through those documents; “the essential
safeguard required is that wholesale removal
must be monitored by the judgment of a neutral,
detached magistrate”
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Digital Evidence Search Warrants –
• Plain view doctrine
should not be
jettisoned in digital
evidence cases –
instead, confines will
vary from case to case
in common sense, fact
intensive manner
Other Circuits
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U.S. v. Williams – Other End of
Spectrum
• Warrant impliedly authorized officers to open
each and every file on computer to view its
contents, at least on cursory basis
• If you have to
click around,
is it really in
plain view?
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Search Warrant Delays
• How long can the government wait to search the
seized ESI?
• U.S. v. Metter, No. 10-CR-600 (DLI), 2012 WL
1744251 (E.D.N.Y. May 17, 2012), while a delay of
several months could be reasonable, a 15 month
delay determined to be unreasonable
– (“government's retention of all imaged electronic
documents, including personal emails, without any
review whatsoever to determine not only their
relevance to this case, but also to determine whether
any recognized legal privileges attached to them, is
unreasonable and disturbing.”).
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U.S v. Jones – “Unanimous” Decision
• 9-0 decision that
the actions of the
government were
a search. But
that’s all that was
unanimous…
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Warrantless Searches of Cell Phones
• Raises special concerns outside of traditional
search incident to arrest
• No longer small containers in pockets; libraries
of information
• Particular evidence that it was related to
commission of crime … or just because it was
in someone’s pocket …
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Cell Phone Search and Seizure
• Cigarette pack or gateway device?
– People v. Diaz; 4th Amendment does not require law
enforcement to get warrant before search text messages
stored on cell phone in possession of arrestee.
– U.S. v. Hill; Cell phone found in a defendant’s clothing is an
element of the person’s clothing, and should not be
treated differently from a wallet
– Schlossberg v. Solesbee; Warrantless searches incident to
arrest not reasonable absent showing search was
necessary to prevent destruction of evidence, to ensure
safety, or exigent circumstances.
– US v. Flores-Lopez; “A modern cell phone is a computer.”
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Fifth Amendment – Compelled Access
to Encrypted Computer Information?
• U.S. v. Doe, 11th Circuit
– Providing encryption information testimonial?
– Suspect could not be required to decrypt
computer hard drives
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JETWG Recommendations for ESI
Discovery in Federal Criminal Cases
• Collaborative agreement between DOJ, FPD,
and CJA providing recommendations for ESI in
federal criminal cases
• Promotes consistency, predictability, and
dialogue
• Meet and confer
• Production
• Brady implications
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Post-Indictment Discovery – Brady
• U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009)
– No Brady violation for “open file” production of massive volume
of ESI.
– Gov’t provided searchable electronic “open file”, a set of “hot
documents” and indices to “hot documents.” No evidence of
bad faith or that Government padded “open file” with
superfluous information.
• U.S. v. Salyer, 2010 WL 3036444 (E.D. Cal. 2010)
– Gov’t ordered to search for and identify Brady/Giglio material.
– Gov’t should have been identifying such material during 5-year
investigation.
– If this was impossible for the Gov’t it is even more impossible
for the defense to do so in matter of months.
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Post-Indictment Discovery – Brady
• U.S. v. Warshak, 631 F.3d 266 (6th 2010)
– Rule 16 contains no indication that documents must be
organized or indexed.
– Defendant’s own documents at stake; had access to those
documents for 2.5 years; inventory provided; ESI was reasonably
searchable.
• U.S. v. Farkas, No. 11-4714 (4th Cir., May 16, 2012)
– No abuse of discretion when court refused to grant defendant
more time to review 59 million pages for exculpatory evidence.
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Social Media
• Unique preservation, collection and discovery
challenges
• Government’s statutory authority to access
social media/ESI v. defendant’s lack of
authority
• Ethical limits on the gathering and use of
social media
– Use of social media and internet for fact gathering
– Use of electronic media to discuss a case
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Social Media (cont.)
• Social media at trial
– Jury venire research
– Ethical limitations
– New trial ordered for failure to disclose Skype
communications. U.S. v. Stirling, No. 11-20792
(S.D. Fla. June 6, 2012)
– Juror use of social media. Erickson Dimas-
Martinez v. State of Arkansas, 2011 Ark. 515
(2011) (juror tweets overturned conviction)
– Authenticating social media evidence
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Questions?
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Thank you for attending.
• Ron Hedges: Moderator r_hedges@live.com
• Judge Thomas Vanaskie
• Andrew Goldsmith Andrew.Goldsmith@usdoj.gov
• Douglass Mitchell dmitchell@BSFLLP.com
• Justin Murphy justin.murphy@crowell.com
• Sean Broderick sean_broderick@fd.org
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