New Jersey Appellate Court Denies Motion to Suppress Warrantless Disabling of Cell Phone Lock

Last Friday, the Appellate Division of the Superior Court of New Jersey issued a decision, State v. K.D.c, No. A-3080-17T1, 2020 N.J. Super. Unpub. LEXIS 372 (N.J. Super. Ct. App. Div. Feb. 21, 2020) affirming a decision to deny a motion to suppress evidence police seized during a cell phone search. The Court held putting a cell phone in airplane mode and disabling the lock on the phone was unlawful. However, citing the decision of the Supreme Court of United States in Riley v. California, 573 U.S. 373 (2014), the Court held that there was no Fourth Amendment violation because no data was taken from the phone. "The cell phone itself cannot be suppressed because police seized it during a lawful search incident to arrest and no data was taken during the unlawful entry." Id. at *21.

In its per curiam decision, the Court noted that the Riley decision recommended that police disconnect a cell phone from a network to avoid remote wiping. The Defendant did not challenge a post seizure search of the phone pursuant to a Communications Data Warrant which located evidence used in the government's case.

App to communicate securely with criminal trial witnesses

Defense attorneys in the New York state courts have been using an app called WitCom to securely communicate with witnesses identified by prosecutors in criminal cases. Both phone calls and text messages can initiated using the app.

Witcom allows the participants' contact information to remain anonymous. A defense attorney will never see a witness's actual phone number. The app allows updates concerning witnesses to sent automatically to a counsel's smartphone. Witcom does not retain messages in its own database - all messages are saved locally on the attorney's mobile devices.

On Friday, a judge in criminal court in Kings County ruled that use of the app does not comply with state law requiring prosecutors to share contact information with defense counsel. An order was issued requiring the phone numbers and email addresses of witness to be disclosed.

E.D. Tex.: Cloned Discovery from Another Case Is Improper

Last month, Magistrate Judge Caroline M. Craven issued a decision, Travelpass Group v. Caesars Entm't Corp., No. 5:18-cv-153-RWS-CMC, 2020 U.S. Dist. LEXIS 26558 (E.D. Tex. Jan. 16, 2020) denying the Defendants' joint motion to compel Travelpass to produce documents it produced to the FTC and to Expedia in a separate arbitration case. These documents were already collected and reviewed on an electronic platform. Travelpass contested the Defendants' failure to specify search terms; custodian names; and date ranges for refining the FTC and Expedia productions in compliance with the discovery order, and stated that the production would be burdensome because different law firms handled the FTC and Expedia productions.

The E-Discovery order issued by the Court requires that parties make specific requests for email productions, and that requests for non-email ESI have proportional and reasonable limitations. Judge Craven concluded that the E-Discovery order covered email productions made in other case, and also stated that, "asking for all documents produced in another matter is not generally proper." Id. at *17. Cloned discovery is only permitted when the fact of the production of the documents in another case is relevant to the present case.

". . . the Court finds that an informal request that seeks wholesale duplicates of discovery produced in other litigation is improper as failing to make the requisite showing of relevance. Defendants are not entitled to the wholesale reproduction of all of the FTC Documents and Expedia Documents simply because there may be overlap between the issues in those cases and those in this case." Id. at *20.