Volume 2, Issue 3

Chair's Welcome

Practice Edge

• BioBlurb

• Catalyst at the Water/Oil Interface

• EDDE Case Digest

• SciTech Job Search Strategies for a Challenging Economy

• SciStatus Update

• Should Federal Govt Enact Regs. to Protect Right to Install Windmills & Clean Energy Devices?

• Solo Practitioner Guide

COLLEAGUE CONNECTION

Learn about Section
member professional updates.

SECTION NEWS

• 2010 Student Writing Contest Details

• Register for Free Section Member Teleconference

• SciTech Diversity Showcase

Sponsorship Opportunities

FJE Ambassador Sought

 

Calendar/cle

ABA TECHSHOW
March 25-27, 2010
Chicago, IL

25th Annual Intellectual Property Law Conference

Apr. 7, 2010 - Apr. 10, 2010
Marriott Crystal Gateway
Arlington, VA
Live/In-Person

BOOK STORE

 The advancement of technology in the past decade has catapulted the prominence of electronic evidenc... Read More

 This book provides you with a legal and practical approach to the new world of digital information. It has been described as a must have  for litigation lawyers, corporate counsel and records managers who want to understand how to appropriately handle the digital information of an enterprise. Read more.



The SciTech Lawyer

 The Section's quarterly magazine features practical and timely articles on a diverse range of science and technology law issues. This issue focuses on technological touchpoints.

Contact Us




The SciTech e-Merging News is published quarterly as a Section member benefit. Click here to join the Section. The material published reflects the views of the authors and has not been approved by the Section of Science & Technology Law, the House of Delegates or the Board of Governors of the ABA. © 2010 American Bar Association. All rights reserved.

PRACTICE EDGE

edde case digest

Volume II No. 1 - 2010 - 01-07

Welcome to the first 2010 edition of the EDDE digest. We open this year's digest with a trio of decisions from Magistrate Judge Facciola of the U.S. District Court for the District of Columbia. The first provides an excellent discussion of new Federal Rule of Evidence 502. The second and third decision involves Fourth Amendment search proscriptions relating to cellular telephones.

All errata acknowledged in advance.

SWT

Decisions:

Amobi, et al. v D.C. Department of Corrections, et al., 08-Civ-1501 (D.D.C. 2009)

In the Matter of the Search of Motorola Cell phone et al., 09-M-652 (D.D.C. 2009)

In the Matter of the Search of Motorola Cell phone et al., 09-M-652 (D.D.C. 2010)
***********

Case: Amobi, et al. v D.C. Department of Corrections, et al.

Citation: 08-Civ-1501 (D.D.C. 2009)

Date: 2009-12-08

Topics: Privilege, Fed.R.Evid. Rule 502, counsel as witness, motions to quash and for protective orders, Rule 502 reasonable steps required, burden to establish waiver.

This decision arises out of the inadvertent disclosure of a memorandum prepared by counsel for District of Columbia in connection with an arbitration proceeding. The Court first points out that, on discovery of the inadvertent disclosure, defendant's counsel sent a letter to plaintiffs' counsel asking "for the return of destruction of the confidential document."

The plaintiffs then sequestered the document, but refused to return or destroy it, instead subpoenaing one of defendant's attorneys for deposition. Defendant responded by moving to quash the subpoena.

Are we having fun yet? Wait, it gets better.

Plaintiffs then moved for a "Determination of Privilege" in connection with memorandum in question.

Author's Note: Odd. One might think that a determination of privilege would be intrinsic to subpoena-quashing motion practice. Perhaps counsel was experiencing a bout of motion sickness.

Defendant argued that the subpoena should be quashed because it sought the disclosure of information protected by attorney-client privilege and the
work product doctrine.

The ensuing argument embraced the expected, but also invoked new Rule 502 of the Federal Rules of Evidence. Here, defendants readily admitted to inadvertent disclosure, but also relied on F.R.E. Rule 502 to assert that privilege had not been waived.

The Court provides Rule 502's pertinent provisions:

"Rule 502 states that when privileged information is inadvertently disclosed, "the disclosure does not operate as a waiver in a Federal or State proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B)." Fed. R. Evid. 502(b).

Defendants offered three bases supporting their assertions that there was no privilege waiver in that they met the requirements for inadvertent disclosure clawback under Fed.R.Evid. Rule 502.: (1) inadvertence, (2) defendants did assert attorney client privilege for documents, and (3) that counsel took steps immediately upon discovery of the disclosure in accordance with Fed.R.Civ.P. Rule 26(b)(5)(B).

Interestingly, defendants in this case also sought a protective order preventing plaintiff from taking depositions in connection with the documents pertaining to the waiver dispute, in essence arguing that plaintiff's efforts were intended to harass, annoy or oppress, and that compelling deposition would cause undue burden.

In favor or its pro-waiver argument, plaintiff argued that the disclosure constituted a "disingenuous attempt to reverse" a conscious decision to disclose the
memorandum followed by an about face."

Amobi, et al. v D.C. Department of Corrections, et al., 08-Civ-1501 at p. 5
(D.D.C. 2009)
Motion to Quash and for a Protective Order Where matters involving privilege and work product doctrine are involved, it's not surprising that plaintiff filed a motion to quash and for a protective order. The standard for granting such an order, however, sets a high bar. The Court notes first that under District of Columbia decisional [federal] decisional authority, attorney client privilege does not immunize facts:

"To grant the motion to quash and the protective order, I would have to find that "there is not a single question that could be propounded to [O'Neill] that would not be objectionable because it would disclose a confidential communication between attorney and client or attorney work product." See Sanders v. Dist. of Columbia, No. 06-CV-1411, 2009 WL 481683, at *4 (D.D.C. Feb. 25, 2009). No witness can claim immunity as to facts (id.)..." Id.

Annoyance, Harassment of Oppression

For those seeking to assert annoyance, harassment or oppression as the basis for a motion to quash, just saying so does not make it so, at least not within the context of a motion to quash or for a protective order:

"Further, I cannot find, as defendants argue, that plaintiffs seek the depositions merely to annoy, embarrass, or oppress O'Neill or Johnson merely because the defendants say this is so." Id., at p. 6

Counsel as Witness

The Court then addresses defendant's attempt to depose defendant's counsel as witness, and discusses the judiciary's reluctance to permit counsel to be deposed and called as witnesses:

"With that said, I must make it clear that I am reluctant to permit a deposition of these two lawyers that has no limits. Courts have frequently expressed their reluctance to permit counsel to be deposed and called as witnesses. See, e.g., C & E Servs., Inc. v. Ashland, Inc., No. 03-CV- 1857, 2008 WL 1744600, at *2 (D.D.C. Apr. 14, 2008)." Id.

Author's Note: In general judicial reluctance to have a party's counsel deposed or testify makes sense. This reluctance may not as likely to be seen in matter where counsel is involved in ESI discovery motions practice. The responsibility for discovery falls first on the shoulders of counsel (see Zubulake IV), and counsel have an increasing obligation to insure both transparency and cooperation in the ESI discovery process. If things fall apart, and serious discovery abuse or spoliation is alleged, an evidentiary hearing that includes counsel testimony may take place.

Ok, back to the opinion.

The document inadvertently disclosed here also discussed in part the weakness of the District of Columbia's case against the plaintiff, and the Court makes very clear that witness opinion about the relative strength or weakness of a party's case is neither relevant, nor probative, and therefore inadmissible:

"A witness's opinion about the weakness or strength of a party's case does not make any fact in that case more or less likely. It has no probative value whatsoever. Such an opinion is inadmissible. See, e.g., Hogan v. Am. Tel. & Tel. Co., 812 F.2d 409, 411-12 (8th Cir. 1987) (finding that a witness cannot instruct the fact-finder on the applicable principles of law) (citations omitted); see also Weston v. Wash. Metro. Area Transit Auth., 78 F.3d 682, 684 (D.C. Cir. 1996) (finding that legal conclusions are outside a witness's area of expertise)." Id.

The Court did permit some limited inquiry, and that was to whether defendants know they were submitting false documents about a crime victim's interview into evidence when they had not. Clearly factual, relevant, and clearly permissible.

District of Columbia Attorney Client Privilege

The Court then provides an overview of District of Columbia decisional authority for attorney-client privilege, starting first with the precept that the objective of the privilege is to protect a client's confidences to counsel, thereby encouraging a relationship based on openness and honesty:

"The purpose of the attorney-client privilege is to protect a client's confidences to his or her attorney, thereby encouraging an open and honest relationship between the client and the attorney. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980)." Id., at p 7

The Court then discusses the approach of other federal courts, which have extended the privilege to attorney's written communications to a client (with the objective of protecting against inadvertent disclosure, and contrasts it with the more privilege-limiting approach taken by the District of Columbia, which provides that the attorney client privilege protects those attorney client communications only where these communications are based on confidential information.

Thus, notes that the court, in accordance with the more strict approach adopted by the U.S. Court of Appeals for the District of Columbia Circuit, an attorney's conveyance of mere facts in a communication to a client is not protected by the privilege:

"The communication from an attorney is only protected if it is based on confidential information provided by the client. Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977). Thus, "when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged." In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984) (citing Brinton v. Dep't of State, 636 F.2d 600, 604 (D.C.Cir. 1980), cert. denied, 452 U.S. 905 (1981))." Id. at p. 8 The Court then points out that the burden to establish privilege falls on the claimant, and that the standard is sufficient facts to establish the privilege:

"Accordingly, the claimant must "demonstrate with reasonable certainty that the attorney's communication," in this case the memorandum, "rested in significant and inseparable part on the client's confidential disclosure." Id. (citing Federal Trade Comm'n, 628 F.2d at 213; Brinton, 636 F.2d at 603-04; Mead Data Cent., Inc., 566 F.2d at 254)" Id. p. 9.

The Court then determined that under District of Columbia law, plaintiff's assertion below was not sufficient to meet the burden because 1) the assertion was broadly made (e.g., "all discussions and written documents, having to do with the legal department"), 2) it did not provide any evidence regarding the particular memorandum in question, and that no portion of the memorandum "rested in significant part" on the client's confidential disclosure," and (perhaps most intriguing) did not even allude to a client confidence.

Result? The Court determined that the memorandum in question was not protected from disclosure by the attorney client privilege.

Author's Note: There are those who believe that the metadata of a document otherwise privileged is also privileged. The arguments countering this belief are twofold: The first is that where this metadata contains facts (date, time, author, recipient), there arguable is no confidence to be disclosed. The second argument is that a properly detailed privilege log reflects in print information typically provided (or authenticated) by metadata.

But wait, it doesn't end there. The Court then turns to the issue as to whether the memorandum is protected by the attorney work-product doctrine, and then blends the influence of new Rule 502 of the Federal Rules of Evidence into that analysis.

Attorney Work Product Doctrine

The Court then discusses whether the memorandum is protected from disclosure by the attorney work-product doctrine. Fed. R. Civ. P. Rule 23(b)(3) provides generally that "documents and tangible things that are prepared in advance of litigation" may not be discovered.

For those who slept through Civ. Pro., the Court presents a reprise of Hickman v Taylor, the seminal case discussing the work-product doctrine:

"The work-product privilege protects written materials that lawyers prepare "in anticipation of litigation or for trial." Fed. R. Civ. P. 26(b)(3). According to Rule 26(b)(3), "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative" may not be discovered. Fed. R. Civ. P. 26(b)(3)(A). The purpose of the privilege is to protect the adversary process by ensuring that lawyers work with a "degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 510
(1947)." Id. at 10.

The Court finds that the memorandum in question involved an attorney's mental processes and analysis of a particular litigation. Accordingly the Court reasoned, the memorandum was prepared for trial (an arbitration, to be precise), and thereby protected by the attorney work-product doctrine.

With the attachment of work-product doctrine protection to the memorandum, the Court then turns to the application of new Fed.R.Evid. Rule 502, to the disclosure of the now-charactized-as-protected document to opposing counsel.

Author's Note and Practice Tip: Ok, so this might seem a bit law-schoolish, but keep in mind that Fed. R. Evid. Rule 502's clawback provisions apply only where there has been a prior determination that the communication itself was protected (e.g., by attorney work-product doctrine, or by the attorney-client privilege). So, a Rule 502 analysis must involve privileged or otherwise protected information, and that as in this case, there is a dispute, requiring a preliminary judicial determination as to the status (privileged/non-privileged) of the communication at issue.

Fed. R. Evid. Rule 502 Inadvertent Disclosure

This opinion underscores how Fed.R.Evid. Rule 502 drastically changes the decisional landscape in certain circuits in the federal judicial system.

Prior to F.R.E. 502's effective date, District of Columbia precedent provided that any disclosure, however inadvertent, resulted in an automatic waiver. New Fed.R.Evid. Rule 502 changed that, and as of late 2009, trumps the D.C. Circuit's decisional authority. The Court turns to a discussion of the new rule's effect in the District of Columbia.

"Rule 502(b), enacted on September 19, 2008, overrides the long-standing strict construction of waiver in this Circuit. The new Federal Rule of Evidence 502(b) protects from waiver a privileged document that has been disclosed inadvertently. See Fed. R. Evid. 502(b). The rule brings uniformity across the circuits to their once differing treatment of the effect of certain inadvertent disclosures of privileged materials. See Fed. R. Evid. 502 advisory committee note." Id., at p. 11.

The Court then notes that while 502 removes the Draconian effect of the D.C. Circuit's prior approach, disclosures are not granted an automatic clawback
by mere invocation of the rule:

"While an inadvertent disclosure no longer carries with it the cruel cost of subject-matter waiver, Rule 502(b) does not remove the parties' responsibility to take reasonable precautions against disclosure of privileged documents. Instead, the reasonableness of precautions taken to protect the privilege is an explicit consideration in determining whether waiver occurred, no matter the inadvertency of the disclosure." Id. at pp. 11-12

Fed.R.Evid. Rule 502's Three Part Waiver Test

The Court then outlines the means by which Rule 502 may be successfully invoked and discusses the rule's three part test to determine if an
inadvertent disclosure constitutes a waiver:

"This middle ground, unlike the D.C. Circuit's strict waiver rule, requires the court to apply a three part

test to determine if the inadvertent disclosure constitutes a waiver. See Fed. R. Evid. 502(b)(1)-(3). The three-part test finds that the disclosure
is not a waiver if:

(1) the disclosure was inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error.

Id.1" Id., at p. 11.

Fed.R.Evid. Rule 502 and ESI

The Court makes special mention of Rule 502's significance as it relates to electronically stored information ("ESI"). In the opinion's first footnote, set forth below, Magistrate Judge Facciola points out that one of the biggest drivers for the imposition of the new rule was the prevalence of ESI
in discovery:

"FN1. A significant motivation for the new rule was the increased prominence of electronic discovery that may involve the production of thousands of pieces of electronically stored information ("ESI") that has led fortunes to be spent analyzing every piece lest the inadvertent production of one be deemed a waiver not only as to the piece inadvertently disclosed but as to all the others that relate to the same subject matter. See Fed. R. Evid. 502 advisory committee's note. To date, most of Rule 502 cases deal with electronic discovery. See, e.g., Heriot v. Byrne, 257 F.R.D. 645, 660-61 (N.D. Ill. 2009); and Rhoads Indus., Inc. v. Bldg. Materials Corp. of America, 254 F.R.D. 216 (E.D. Pa. 2008)." Id.

FRE 502's Two-Step Reasonable Step Requirement

The Court then emphasizes that while Rule 502 does not impose upon a party the "cruel cost of subject matter waiver" a party is expressly required to
take "reasonable precautions" to both prevent and to rectify disclosure.

Burden to Establish Waiver

The Court then turns to the issue of whose burden it is to prove waiver under Rule 502 (which provides no guidance). Turning to federal common law
from the District of Columbia, the Court determines that the proponent bears the burden of establishing waiver by inadvertent disclosure:

"Rule 502 itself does not provide any guidance on who has the burden of proving waiver.

In this district, prior to the enactment of the rule, "the proponent of the privilege. . . [had] the

burden of showing that it [had] not waived attorney-client privilege." See United Mine Workers of Am. Int'l. Union v. Arch Mineral Corp.,145 F.R.D. 3, 6 (D.D.C. 1992) (citing Sec. and Exch. Comm'n v. Gulf & Western Indus., Inc., 518 F.Supp. 675, 682 (D.D.C. 1981)). I see no reason why Rule 502 can be interpreted to modify that rule and I will apply it." Id. at p. 12.

Step 1 – Inadvertence Means Mistaken

The Court then embarks on one of the first journeys through a Fed.R.Evid. Rule 502 three part inadvertent waiver test.

We might have seen this coming, but the F.R.E. does not define inadvertent. So noting, the Court then discusses decisional authority addressing the meaning of inadvertence, and eschews more formulaic approaches from other jurisdictions in adopting "mistaken" as the definition of inadvertence:

"The first step of the analysis is determining whether the disclosure was inadvertent. Rule 502 does not define inadvertent disclosure. Prior to the rule, the court of appeals did not distinguish between inadvertent and other types of disclosure; however, other courts that followed a less strict construction of waiver considered a number of factors to determine inadvertency, including the number of documents produced in discovery, the level of care with which the review for privilege was conducted and even the actions of the producing party after discovering that the document had been produced. See, e.g., Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 388 (7th Cir. 2008) and Heriot, 257 F.R.D. at 658-59. Other courts have found that Rule 502(b) provides for a more simple analysis of considering if the party intended to produce a privileged document or if the production was a mistake. See e.g., Coburn Group, LLC v. Whitecap Advisors LLC, 640 F. Supp. 2d 1032, 1037 - 1038 (N.D. Ill. 2009). This interpretation seems to be in line with one of the goals of the drafting committee: to devise a rule to protect privilege in the face of an innocent mistake. Coburn, F.Supp.2d at 1038 (citing Ltr. from Lee H. Rosenthal, Chair, Comm. on Rules of Practice and Procedure, to Hon. Patrick J. Leahy, Chairman, Comm. on the Judiciary, U.S. Senate, and Hon. Arlen Specter, Member, Comm. on the Judiciary, U.S. Senate, at 2 (Sept. 26, 2007))."

Author's Note: We know now that "inadvertent" means "mistaken" in the federal courts in the District of Columbia. We've yet to see whether this definition is embraced by other jurisdictions, especially in those (such as the Seventh Circuit) where pre-Rule 502 inadvertent disclosure did not result in automatic subject matter waiver.

The Court also takes pains (in reality, seeks to avoid future pain) by dissociating the terms "inadvertent" and "reasonable efforts," and discusses this nuance in some detail. The Court provides the explanation that to graft more than "mistaken" to the word "inadvertent" would be to conflate the later with notions of reasonableness:

"Additionally, permitting "inadvertence" to be a function of, for example, the amount of information that had to be reviewed or the time taken to prevent the disclosure melds two concepts, "inadvertence" and "reasonable efforts," that should be kept distinct. One speaks to whether the disclosure was unintended while the other speaks to what efforts were made to prevent it. I will therefore use the word "inadvertent" from Rule 502 to mean an unintended disclosure." Id. at p. 13.

The Court then turns to Plaintiff's argument, in essence asserting that "if a disclosure is by a lawyer, then it was clearly not mistaken and not inadvertent." The Court explains that to accept Plaintiff's argument would eviscerate Rule 502. Not surprisingly, the Court disagreed, but not without providing some signature Facciolia-esque humor:

"According to plaintiffs, if the disclosure was by a lawyer, then it clearly was not mistaken and not inadvertent; if it was by a non-lawyer, then defendants did not take reasonable steps to protect privilege. Reply to Mot. for Claim of Priv. at 3. The premise of that statement is wrong. Lawyers make inadvertent mistakes; it is judges who never make mistakes.

"More to the point, to find that a document disclosed by a lawyer is never inadvertent would vitiate the entire point of Rule 502(b). Concluding that a lawyer's mistake never qualifies as inadvertent disclosure under Rule 502(b) would gut that rule like a fish. It would essentially reinstate the strict waiver rule in cases where lawyers reviewed documents, and it would create a perverse incentive not to have attorneys review documents for privilege."

Step Two: Fed.R.Evid. Rule 502 - Reasonable Steps to Prevent Disclosure.

The Court next addresses the second step of the three part test imposed by Rule 502. Did the disclosing party take reasonable steps to prevent disclosure? In answering this question, the Court points out that this issue has been addressed by other courts from within the context of electronic discovery. The Court then notes that the Advisory Committee intentionally chose not to codify (or limit) factors could be considered in making this determination, choosing flexibility over a more doctrinaire approach.

The Court notes that this more flexible approach anticipates huge volumes of ESI, which this action did not involve.

Not a good sign for defendant.

As might be expected, it doesn't get any better for defendant-dislcoser.
The Court points out that

1. The document in question was hard copy, and not ESI

2. Defendants-discloser failed to provide the Court with any privilege review methodology used to cull out privileged documents; and

3. Defendants did not indicate the total number of documents produced, in effect precluding the Court from making a determination as to the magnitude of the error in producing "this one document consisting of four pages."

The Court's concern centered on Defendants failure to discuss how they managed the documents they had, and then produced:

Further, defendants do not indicate how many total documents they produced, so the court cannot determine the magnitude of the error in producing this one document consisting of four pages. Indeed, one keeps searching for some statement somewhere in the defendants' papers that speaks to what they did when they got the documents, how they segregated them so that the privileged documents were kept separate from the non-privileged, and how, despite the care they took, the privileged document was inadvertently produced. Instead, the court is told in the passive voice that "several reviews of the documents to be disclosed were undertaken, [and] this document was inadvertently produced." Memo. to Quash at 8. Hence, the efforts taken are not even described, and there is no indication of what specific efforts were taken to prevent disclosure, let alone any explanation of why these efforts were, all things considered, reasonable in the context of the demands made upon the defendants. Instead,"the court is left to speculate what specific precautions were taken by counsel to prevent this disclosure." Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., Inc. 132 F.R.D. 204, 209 (N.D.
Ind. 1990). There can be no reasonable efforts, unless there are efforts in the first place. Hence, defendants do not meet the burden of proving that the privilege was not waived in regards to the memorandum. Id." Id., at p. 15-16 Of Barn Doors and Self-Inflicted Injuries

The Court also addresses Defendant's argument that Plaintiffs' use of the disclosed memorandum would result in injustice to the Defendant.

Here, the Court notes, Defendants failed both prongs of the "reasonableness" test in that they both [reasonably] failed to prevent, and [reasonably] failed to correct ...

"Finally, there is no injustice here that I can and should redress. See id. (finding that, given the extent of the disclosure, fairness dictates that the non-disclosing party be allowed to utilize its windfall). As other courts have noted, "any order issued now by the court to attempt to redress these disclosures would be the equivalent of closing the barn door after the animals have already run away." Victor Stanley, Inc., 250 F.R.D. at 263 (citing FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 483 (E.D. Va. 1991)). Thus, while Rule 502(b) would in essence allow me to round up the animals and put them back in the barn, defendants have not provided any evidence that they took reasonable efforts to keep the barn door closed. In finding that privilege is waived, "the only 'injustice' in this matter is that done by [d]efendants to themselves." Id. Even if rectifying the error 55 days after discovering it was a prompt effort to rectify the error as 502(a)(3) requires (a debatable proposition in itself),4 defendants' failure to take reasonable efforts to prevent the disclosure in the first place dooms their reliance on the rule. See Fe. R. Evid. 502(b)(2)."

***********

Case: In the Matter of the Search of Motorola Cell phone, et
al.

Citation: 2009-M-652 (D.D.C. 2009)

Date: 2009-12-07

Topics: Fourth Amendment protection for contents of electronic communication

In this second decision from U.S. Magistrate Judge Facciola from the District of Columbia District Court, the Court addresses the "open" question of the extent to which the Fourth Amendment protects the contents of electronic communications in the internet age.

In this matter, two cell phones were seized by law enforcement officers. The first was seized during the execution of a search warrant, and the other was seized from a suspect incident to an arrest. The Court first explains the standard for "probable cause" that evidence will be found in a particular place;

"As the issuing magistrate judge, my task is to determine if, given the totality of circumstances, there is probable cause, or a "fair probability," that evidence of a crime will be found in a particular place. See United States v. Jackson, 415 F.3d 88, 91 (D.C. Cir. 2005) (citing Illinois v. Gates, 462 U.S. 213, 230-31, 238 (1983))." In the Matter of the Search of Motorola Cell phone, 2009-M-652, 1 (D.D.C. 2009).

Magistrate Judge Facciola first discusses the the paucity of Fourth Amendment decisional authority guidance for cell phones, and point outs that electronically stored information is subject to the warrant requirement of the Fourth Amendment:

"That the retrieval of electronic data is subject to the warrant requirement of the Fourth Amendment is not in question. See United States v. James, No. 06-CR-134, 2008 WL 1746124, at *8 (E.D. Mo. Mar. 19, 2008)."

The devil, of course, resides in the details, and the Court points this out:

"As courts of appeals in other circuits have made clear, however, "the extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored." Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 904 (9th Cir. 2008). That the retrieval of electronic data is subject to the warrant requirement of the Fourth Amendment is not in question. See United States v. James, No. 06-CR-134, 2008 WL 1746124, at *8 (E.D. Mo. Mar. 19, 2008). Cell phones have the capacity to store vast amounts of electronic data that far exceeds telephone numbers and calls received. Id. (citing United States v. Black, No. 04-CR-162-S, 2004 WL 3091175, at *7 (W.D. Wis. Jan. 7, 2004)); see also United States v. Park, No. 05-CR-375-SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007)." Id., at 2

That said, the Court also notes the blurring that has taken place between telephones and computers:

"With the increased capacity of cellular phones, "the line between cell phones and personal computers has grown increasingly blurry." United States v. Park, 2007 WL 1521573, at *8. As with personal computers, the ability of the cellular phone "to store and intermingle a huge array" of personal data and information "in one single place [has] increased law enforcement's ability to conduct a wide-ranging search into a person's private affairs, and accordingly makes the particularity requirement [of the Fourth Amendment] that much more important." United States v. Otero, 563 F.3d 1127,
1131-32 (10th Cir. 2009). The Supreme Court has determined that the "manifest purpose of this particularity requirement was to prevent general
searches." Maryland v. Garrison, 480 U.S. 79, 84 (1987)." Id. at p. 3.

The Court here declined to issue the warrants as too general. The warrants did not specify "what exact information" was sought by the agent, but instead sought a general (and impermissible) data "dump" of everything contained in the cell phone's memory:

"To the contrary, Attachment A of the search warrant states that the items to be searched are: "The electronically stored contents, including, but not limited to evidence of ownership, subscribers, address books, call logs, phone books, photographs, voice mail messages, text messages, images and video and any other stored electronic data, and records and information related to cellular telephones including records relating to in-coming and out-going calls, and recorded phone history." Attachment A (emphasis added). Obviously, the agent seeks authority to "dump" the entire memory of the cell phone and then search its entire contents until he finds something incriminatory or useful. But, a warrant must be "carefully tailored to its justification" and cannot "take on the character of [a] wide-ranging exploratory search" prohibited by the Constitution.Maryland, 480 U.S. at 84." Id., at 3.

The Court finds some guidance from 10th Circuit decisional authority, which discusses that Fourth Amendment protection requires "affirmative" limitations:

"The modern development of the personal computer and its ability to store and intermingle a huge array of one's personal papers in a single place increases law enforcement's ability to conduct a wide-ranging search into a person's private affairs, and accordingly makes the particularity requirement that much more important. See, e.g., United States v. Riccardi, 405 F.3d 852, 863 (10th Cir. 2005) (warrant authorizing general search of computer invalid as it permitted officers to search anything "from child pornography to tax returns to private correspondence"); United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999) (computer search for files pertaining to distribution of controlled substances uncovered child
pornography). Because of this, our case law requires that "warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material." Riccardi, 405 F.3d at 862 (emphasis added)." Id., at 3

Here, the Court points out that the there were no limitations on what police desired to search, and that these "indiscriminate" searches were of the type prohibited by the Fourth Amendment:

"To the contrary, the police seek to search the entire memory of the cell phone indiscriminately in the hopes that something on it will incriminate the defendant or be useful in another investigation. I believe that there is no clearer definition of a "general search" prohibited by the Fourth Amendment than

the one that would be permitted if I signed these warrants." Id., at p. 4

Result: Application for search warrants denied.

***********

Case: In the Matter of the Search of Motorola Cell phone, et
al.

Citation: 2009-M-652 (D.D.C. 2009)

Date: 2010-01-07

Topics: Fourth Amendment protection for contents of electronic communications

In this third decision from U.S. Magistrate Judge Facciola from the District of Columbia District Court, the Court re-visits addresses the "open" question of the extent to which the Fourth Amendment protects the contents of electronic communications in the internet age, and arrives at the same conclusion, with some additional legal embellishment.

Noting that it still found the application for the search warrant "wanting," the Court again declined the opportunity to issue what it determined to be an impermissible broad request. This time, the request provided a reason for searching, but not how the search would be limited to evidence of criminal activity:

"The government seeks to search not only the telephone numbers and calls received, but also voicemails, text messages, calendars, photographs, and"any other stored electronic data" on the phones. Application and Affidavit for Search Warrant at Attach. A. The government asserts that because the phones belonged to drug dealers, and drug dealers use cell phones to communicate and conduct business, there is probable cause for a general search of all of the contents of the cell phone. Although the renewed applications limit the search to evidence of narcotics offenses in violation of 21 U.S.C. §§ 841 and 846 (West 2009), the government provides no indication as to how the search will be limited to evidence of these crimes." In the Matter of the Search of Motorola Cell phone et. al. 09-M-692 (D.D.C. 2010).

Of District of Columbia Drug Dealers, Fishermen In India, and Brazilian Farmers

In emphasizing the improperly broad scope of the government's application for the cell phone search, the Court employs simple logical reasoning...to illustrate the government's flawed logical reasoning. Here, the Court describes the rationale for the government's request to be based on no more than cell phone use by a human:

"Cell phones are ubiquitous in today's global society. Drug dealers in the District of Columbia use cell phones to communicate and conduct business, but so do fishermen off the coast of India searching for fertile waters, farmers in Brazil taking their harvest to market, and school children throughout the United States coordinating class projects. All facets of society have access to and use cell phones to communicate and conduct business, whether that business is illicit or not. In other words, the government would do just as well to argue that human beings use cell phones to communicate and conduct business; therefore, when a person is suspected of a crime, the government has probable cause to search all contents of his or her cell phone simply because he or she is a human with a cell phone." Id. at p. 2.

Magistrate Judge Facciola drives home this point: That the use of a cell phone for criminal purposes does not make every cell phone user suspect, or every cell phone searchable for potentially illegal purposes:

"To justify the search of the cell phone because drug dealers use cell phones is to justify the search of a doctor's cell phone because evil doctors use them to perpetrate Medicaid fraud or the search of an accountant's cell phone because equally evil accountants use them to perpetrate tax fraud." Id.

And drives that point home again:

"That makes the contents of every cell phone in every American's pocket searchable because other people may use cell phones to do something wrong. It means that the use of a cell phone renders its possession incriminatory enough to justify its search, not because the police have some reason to believe that this particular phone was used illegally, but because the police are aware that some one else has used a cell phone illegally." Id.

And again:

"The government cannot provide a stopping point for its theory that the criminal use of a cell phone by one person makes retention and use of a cell phone by any one else sufficient to render a phone's entire contents searchable. It literally makes every cell phone in America searchable because the society, speaking through its law enforcement agents, has experienced the use of cell phones for nefarious purposes." Id.

The opinion's language, and tone, speaks volumes.

But wait, wait, it gets better (or worse, depending on your P.O.V.)

Fourth Amendment Search Requires Explanation of Manner and Means

The Court then explains its concern over the government's intention to "dump" the entire contents of the memory of the cell phone and then search it in the hope of "finding something incriminatory."

The Court notes that although the government had limited the scope of its search to drug dealing, it provided no information as to how it planned to carry out that tailored search.

Result? The government still sought a constitutionally impermissible data "dump:"

"This brings us back to my initial concern when I denied the first applications: that the government is seeking the "authority to 'dump' the entire memory of the cell phone and then search its entire contents until [it] finds something incriminatory or useful." Order at 3. The application is more tailored than its predecessor in that it seeks to search the contents of the cell phone only for evidence of drug-related crimes, but we are back where we started: the government wants to see the entire contents of the cell phone's memory in the hopes of finding something incriminatory."
Id.

"Its application does not propose a manner or means of searching the contents to narrow the search so that the police can search effectively for what is incriminatory without also looking at information that is none of their business." Id.

"Putting together the two deficiencies, the government is asking for no less than the right to dump the entire contents of a cell phone's memory because other persons have been known to use cell phones for nefarious purposes. That is exactly the general search, premised on mere suspicion, that the

Fourth Amendment prohibits." Id.

The Court denied the re-application for the cell phone search warrants.

***********

Steven W. Teppler, Esq.
KamberEdelson
e-Litigation - Chicago
www.kamberedelson.com

This is the Electronic Discovery Digital Evidence Committee listserv. Click here to join the EDDE for FREE.

 


Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.

Update your profile | Unsubscribe | Privacy Policy

American Bar Association | 321 N Clark | Chicago, IL 60610 | 1-800-285-2221