Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
9TH CIRCUIT TAKES A HATCHET TO "PLAIN VIEW" IN GOVERNMENT ESI SEIZURES
August 28, 2009
Some decisions just make you want to waive pom-poms and cheer. This is one of them.
In the August 26th decision in U.S. v. Comprehensive Drug Testing, Inc.,a search warrant had been granted in a federal investigation into steroid use by professional baseball players. The warrant was limited to the records of ten baseball players as to whom the government had probable cause. When the warrant was executed, however, the government seized and promptly reviewed the drug testing records for hundreds of players (and a great many other people!).
The government did properly seek advance authorization for sorting and segregating the seized materials (the Tracey Directory) off-site. But it ignored the warrant's requirement that any seized items not covered by the warrant be first screened and segregated by computer personnel.
The case agent immediately violated the warrant's terms by giving himself full access to the Tracey Directory without any attempt to engage a specialist who could separate out the data for which the government had probable cause. There was a computer forensics agent at the seizure who made the determination to take the directory because the data could not be separated onsite. But the computer forensics agent wasn't asked to separate the data – it all went to the case agent. Just deplorable.
It was also noteworthy that the government failed in its duty of candor to the tribunal when it failed to disclose that CDT had already agreed to keep this data intact. CDT employees tried to assist the federal agents and give them only the data covered under the warrant, but their assistance was refused.
Under the government's theory, apparently everything which is seized is in plain view. It therefore seizes more rather than less so it can "fish."
This opinion really eliminates the "plain view" doctrine in cases where ESI is seized pursuant to a warrant.This doctrine has clearly been abused in electronic evidence cases, wherever seizable and non-seizable data are co-mingled. If the government doesn't forswear reliance on the plain view doctrine in a warrant application, Chief Judge Kozinski states that the magistrate judges should order that the data be separated by an independent third party under the court's supervision or the warrant should be denied.
The government's behavior in this case was inexcusable. This was an excellent decision and I am waving my pom-poms.
Listen to the Podcast
