September 25, 2012
In this final installment of criminal e-discovery, Daniel Garrie addresses electronically stored information (ESI) as it relates to Fourth and Fifth Amendment Rights.
Corporate entities are creatures of the state and do not enjoy a Fifth Amendment privilege; however, their employees as individuals do, and counsel must be on the alert as to whether a defendant has an “act of production” privilege. Kordel and Doe remain as good benchmarks for present-day defendants confronting governmental agencies seeking e-discovery. Defendants should inquire, with the advice of their counsel, as to whether the forum the government or regulator is utilizing to obtain e-discovery is appropriate, and that the parties have a common understanding as to the implication of production. Defendants must be wary as to whether the e-discovery being sought in one forum (e.g., regulatory or administrative) is a pretext for building a criminal prosecution that compromises a defendant’s constitutional rights. Moreover, the protocol for handling ESI and the manner in which it was actually handled should be memorialized in the event contested issues arise.
Because technology has become inextricably tied to the way people communicate, and therefore constitutes important evidence, criminal defendants will likely seek discovery of ESI (e.g., Facebook, YouTube, Twitter and any other soon-to-be social networks) from third parties as well as the government. Counsel who does not press the government effectively to produce ESI may deprive the client of an adequate defense. Counsel should also investigate all sources that may be available to clients for underwriting the expense of e-discovery (e.g. the advancement provisions of directors and officers insurance policy).
As the role of ESI becomes ever more central during pre- and post-indictment proceedings, criminal defendants may need to rely upon the resources of friends and relatives in order to retain computer forensic experts in addition to counsel. As for indigent clients, defense attorneys may have to petition for court-ordered funds. ESI may contain golden nuggets information, and therefore, defendants who do not diligently pursue ESI on a level playing field with the prosecution may place their defense at risk.
Fourth Amendment questions which have been plaguing American courts for decades have re-emerged with the development of technology and the emergence of e-discovery. Specifically, arguments have been made to claim that the Fourth Amendment should not apply because electronically shared or stored information does not possess a “reasonable expectation of privacy.” Another Fourth Amendment concern which has lost some clarity with e-discovery, and has garnered recent criticism in the Ninth Circuit’s ruling of United States v. Comprehensive Drug Testing Inc., is the prohibition against general warrants and the need for particularity of description for the issuance of all warrants. E-discovery allows for the search of suspect’s computers and other electronic devices which could hold incriminating information anywhere in: the hard-drive, the system, the database, in e-mails, etc…. Additionally, officers’ searches aren’t limited by size of evidence or “curtilage” when dealing with e-discovery, as they would be in traditional searches. These types of unencumbered searches seem to further weaken the notion of a person being “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” which the Fourth Amendment requires.
E-discovery is still a relatively new tool in the criminal defense arsenal. Depending on how it is used, e-discovery can tip the scales in favor of the prosecution or it can level the playing field. When planning for criminal e-discovery counsel should look at the larger picture to ensure any evidence presented does not implicate their client further down the road.