The views expressed in this blog are those of the owner and do not reflect the views or opinions of the owner’s employer. All content provided on this blog is for informational purposes only. The owner of this blog makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The owner will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information. This policy is subject to change at any time. The owner is not an attorney, and nothing posted on this site should be construed as legal advice. Litigation Support Tip of the Night does not provide confirmation that any e-discovery technique or conduct is compliant with legal, regulatory, contractual or ethical requirements.
Featured on the ACEDS blog.
Follow me on Twitter and see How-To Videos on my YouTube channel.
New tips for paralegals and litigation support profesionals are posted to this site each night. Click on the blog headings for better detail.
Off-Site Examination of Electronic Media Seized During the Execution of Search Warrants
December 1, 2019
The Department of Justice's Computer Crime and Intellectual Property Section Criminal Division's manual, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, advises agents that electronic media does not have to be searched on-site during the execution of a search warrant. It acknowledges the difficulty of searching hidden directories; encrypted data; intentionally mislabeled files; and slack space. The tendency of operating systems to automatically alter data, and the possibility of the remote deletion of relevant data is also discussed. The manual cites several court decisions which have approved removing hard drives and other devices to off-site locations for review.
"Agents are recommended to consider removing hard drives from computers in order to make an image copy on-site. If the entire computer has to be seized, the need to so should specified in the affidavit for the warrant.
As imaging and/or removal is necessary in nearly every computer search warrant case, it is doubtful that failure to include such a statement in the affidavit constitutes a Fourth Amendment violation. Nevertheless, although explicitly required only by the Ninth Circuit, it is a good practice for every search warrant affidavit to explain why it is necessary to image an entire hard drive (or physically seize it) and later examine it for responsive records." (page 78)
Affidavits are not to specify a protocol for the review of hard drive, but simply note that off-site review may be required.