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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 – Other Circuits

• 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

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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

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• If you have to click around, is it really in plain view?

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 [email protected]

• Judge Thomas Vanaskie

• Andrew Goldsmith [email protected]

• Douglass Mitchell [email protected]

• Justin Murphy [email protected]

• Sean Broderick [email protected]