Electronic Discovery and Digital Evidence in a Nutshell - Chapter X Outline

Here's another installment of my outline of Electronic Discovery and Digital Evidence in a Nutshell, the second edition of the West Academic guide to electronic discovery law in the United States authored by Judge Shira Scheindlin (the judge in the Zubulake v. UBS Warburg) and members of the Sedona Conference. An outline of the previous chapter was posted on March 10, 2017.

CHAPTER X – ELECTRONIC DISCOVERY IN CRIMINAL CASES Fed. R. Crim. P. 16 and Brady v. Maryland (1963) require the government to disclose exculpatory evidence to defendants or impeach the prosecution witnesses.

A. COLLECTION OF ESI BY LAW ENFORCEMENT

a. Surveillance and Warrantless Searches of ESI i. Riley v. California (2014) – search incident to arrest, re: cell phones. Officers must secure a warrant before searching a phone. Remote wiping or geofencing (programmed to delete data when moved outside a certain area) can be prevented by disconnecting from a network or removing a battery. Prevent remote encryption by placing in Faraday bag. Court emphasized the range of data that can be stored on a smart phone in considering such a search unreasonable. ii. City of Ontario v. Quon (2010) – okay for government to search pager with text allotment given to police officer – search necessary for a work related purpose. Not the case that only the least intrusive search should be permitted. iii. United States v. Jones (2012) – GPS device attached to a suspect’s car – placing the device on the car constituted a trespass and thus was an illegal search under the Fourth Amendment. Sotomayor concurrence – GPS monitoring makes available at low cost a high amount of information so as to alter the relationship between citizen and government in a way that is inimical to democratic society. Questions appropriateness of use of such a tool without oversight from a coordinate branch and reconsider the premise that an individual has no reasonable expectation of privacy in information disclosed to third parties in age where so much data is disclosed to cellular providers, etc. iv. Courts seldom recognize the voluntary privacy settings on a social media application as establishing a reasonable expectation of privacy.

b. Search and Seizure of ESI Pursuant to a Warrant i. U.S. v. Comprehensive Drug Testing (9th Cir. 2010) – 1. Government has obligation to cull evidence down to bounds of Fourth Amendment authorization. 2. Fed. R. Crim. P. 41(g) – obligation to return evidence outside scope of 4th amendment authorization. 3. Can’t apply plain view doctrine to ESI search. ii. U.S. v. Richards (6th Cir. 2011) - a requirement of reasonable particularity will not shield most information stored in a computer from inspection, where police have probable cause to believe that incriminating evidence is somewhere on the hard drive.

B. FIFTH AMENDMENT PROTECTIONS AGAINST SELF-INCRIMINATION

a. Hubbell v. U.S. (2000) – person may be required to produce certain documents event if they are incriminating because the creation of those documents was not compelled within the meaning of the privilege against self-incrimination.

b. Comm. of Va. v. Baust (Va. Cir. 2014) – defendant could not be compelled to produce password he had memorized but could be compelled to produce fingerprint that would provide access to a cell phone.

C. PRESERVATION OBLIGATION AND PRE-TRIAL DISCOVERY

a. General Obligation of Discovery Under Rule 16 and the Jencks Act i. Fed. R. Crim. P. 16(a)(1) – government must disclose as a matter of right upon request: 1. Oral statements at interrogation 2. Written or recorded statements in the custody of government 3. Statements of agents attributable to an organization. 4. Defendants’ prior criminal record 5. Documents that are material to defense 6. Reports of physical, mental and scientific tests material to defense 7. Summary of expert witness testimony ii. Jencks Act – defines statements of government witnesses as those that reproduce exact words verbatim. iii. U.S. v. Warshak (6th Cir. 2010) – federal civil rule requiring data to be turned over in a searchable form is not applicable to criminal cases. iv. U.S. v. Graham (S.D. Ohio 2008) – sheer volume of data produced by the government, combined with erratic method of turning it over, prejudiced defendants by delay necessary to review all of the material. Indictment dismissed on the basis of the Speedy Trial Act.

b. Constitutional Duty to Provide Exculpatory and Impeachment Material Under Brady i. Brady v. Maryland (1963) – prosecutor must disclose all exculpatory evidence. ii. U.S. v. Skilling (5th Cir. 2009) – government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence, but there would be a Brady violation if government did a document dump in attempt to hide exculpatory evidence, but this not applicable with ESI.

c. Trigger of the Duty to Preserve by the Government and the Defendant i. Cal. v. Trombetta (1984) – duty to preserve limited to evidence that is to play a role in a defendant’s defense. ii. Ariz. v. Youngblood (1988) – defendant must show bad faith on part of police when failure to preserve, or no denial of due process. iii. Sarbanes-Oxley Act 18 U.S.C. 1519 – criminalizes destruction of relevant evidence by defendants. iv. U.S. v. Atkinson (11th Cir. 2013) – conviction under 18 U.S.C. 1519 – for deletion of digital video footage. v. U.S. v. Katskis (E.D. Cal. 2014) – section 1519 covered the deletion of emails. vi. U.S. v. Kernell (E.D. Tenn. 2010) section 1519 covers the deletion of personal ESI.

d. Management of ESI Leading Up to Trial i. Joint Electronic Technology Group – (includes DOJ) – basic principles: 1. Lawyers must have an adequate understanding of e-discovery. 2. Parties should include experts on with technical knowledge to assist with resolving ESI disuptes. 3. Parties should meet and confer on the nature, volume and mechanics of producing ESI. 4. Parties should discuss what formats should be used for production 5. Party should not be required to take on expensive conversion techniques. 6. After the meet and confer parties should notify the court of ESI discovery production issues. 7. Discuss ESI discovery transmission methods and media. 8. Multiple defendants should appoint one to act as discovery coordinator. 9. Consult with supervisor on discovery disputes before consulting judicial resolution. 10. Limit dissemination of ESI to members of litigation team. ii. Consult the JETWG E-Discovery Checklist. iii. United States v. Hernandez (S.D.N.Y. 2014) – court refused to appoint a Coordinating Discovery Attorney – because eight defendants were not similarly situated. Non-attorney vendor might be preferable.