Justin Murphy of Crowell & Moring in D.C. recently published an article on dealing with electronically stored information (ESI) for criminal defendants, prosecutors and defense attorneys. He notes, as have many working to produce information to the government, that some of the protections against discovery abuses found in the civil context have not yet developed in governmental investigations and criminal matters. Indeed, these types of eDiscovery projects can be incredibly expensive, complex and time consuming.
An interesting approach to considering search and seizure of ESI taken in his article:
With collection of ESI via a search warrant, it is helpful to think of it as two searches and seizures. First, there is a search of the place specified in the warrant. Over-seizure of ESI is often the result because of the practical realities of on-site searches of large volumes of data, and the fact that files can be readily disguised and intermingled with other personal and/or irrelevant data. Courts have acknowledged and seemingly accepted the need to over-seize in the “first” search and seizure. The second search and seizure usually takes place at law enforcement offices where agents search for and seize data from the “warehouse” of ESI they previously seized.
The debate rises from the second search and seizure – by over-seizing ESI, the government has created a risk that every ESI warrant will be a general warrant, and that the plain view exception to the Fourth Amendment will be rendered meaningless. Courts have questioned how much they should be involved in controlling the government’s conduct of the second search and seizure, whether or not computers deserve special treatment in digital evidence cases, or whether they are analogous to more traditional document containers, such as filing cabinets.
Mr. Murphy covers the basics of the Joint Federal Criminal E-Discovery Protocol, as well as evidence from cell phones, GPS devices, social media and encryption. For those dealing with criminal or investigatory eDiscovery needs, his article is worth a look.