eDiscovery Daily Blog

Understanding eDiscovery in Criminal Cases, Part Two: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars, including our webinar last Thursday (Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018), which was great.  If you missed it, you can check out the replay here.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes.  Now, Tom has written another terrific overview for Understanding eDiscovery in Criminal Cases that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  The first part was published Monday, here’s part two.

Overview of Rules for Criminal Matters

Because more than 90 percent of documents today are generated in electronic format, ESI is becoming more and more prominent in criminal matters, especially white collar criminal cases.  But many attorneys who take on a criminal representation for the first time are surprised to find that there are a different set of rules than those that they are used to working within civil matters.

Although the rules and case law on eDiscovery in the civil arena have been developing at a rapid pace, the same has not happened in criminal law. The Federal Rules of Civil Procedure are just that, the rules for civil matters, while the procedural rules for criminal matters are set forth in the Federal Rules of Criminal Procedure (FRCrimP) as well as the states’ versions of criminal procedure codes.

Because so much of the work in criminal matters involves Fourth and Fifth Amendment constitutional arguments and state constitutional concerns, the rules tend to focus on that area.  The Fourth Amendment, of course, has a general prohibition against searches and seizures without a warrant, but law enforcement may have the right to search an area within the suspect’s immediate control when they arrest someone.

This exception is generally allowed for protection of law enforcement officers and may not give them the right to seize a computer unless it poses a threat. Officers may also search an immediate area if they have reason to believe another suspect is hiding and of course no warrant is needed for contraband in plain sight, neither of which are likely to apply to ESI.

Several problem areas are searches of cars and cell phones.  Upon a traffic stop, police can view the open areas of the car, and if they see something in plain view that gives them probable cause, they can do a full search. This may not extend to a locked glove box or the trunk although some state courts, especially appellate courts, tend to evaluate cases based on a “totality of circumstances” and results may differ.  If an arrest occurs, a full search of the vehicle is allowed.

But what if a laptop or cell phone is found pursuant to a legal search? If the police have probable cause to believe there is evidence of a crime on a computer, they may search it otherwise they will need a warrant.  Cell phones, however, have been given even great protection, a fact of great importance given that surveys show that more than 90 percent of Americans now own or regularly use a cellphone.

In Riley v. California, 134 S.Ct. 2473 (2014), the US Supreme Court, unanimously ruled that police may not search the cell phones of criminal suspects upon arrest without a warrant. The opinion held that smartphones and other electronic devices were not in the same category as wallets, briefcases, and vehicles which are subject to limited initial examination.

Indeed, said Chief Justice Roberts in his opinion, cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”  And, he added, cellphones “are based on technology nearly inconceivable just a few decades ago” when the Court had upheld the search of the arrestee’s pack of cigarettes.

Rather, citizens today have a reasonable expectation of privacy for information on their cell phones and, he said, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Also, police have generally not been allowed to force an individual to hand over passwords or encryption keys given that the Fifth Amendment protects individuals against compelled self-incrimination. However, that protection is beginning to erode as a Florida Court of Appeals recently ruled that the government can force an iPhone user to release their passcode.

In State v. Stahl, (Second District Court of Appeal of Florida, Case No. 2D14-4283, Dec 7 2016) the State filed a motion to force Stahl to give up his password, alleging that there was no Fifth Amendment implication in doing so. The Court agreed holding that “Unquestionably, the State established, with reasonable particularity, its knowledge of the existence of the passcode, Stahl’s control or possession of the passcode, and the self-authenticating nature of the passcode. This is a case of surrender and not testimony.”

Given the increasing reliance on fingerprint and facial recognition as a means of authentication, this area may change even further since police can take fingerprints and photos incident to an arrest.  Also, note that Carpenter vs. United States is pending before the Supreme Court now. This case asks if authorities need a probable-cause court warrant to access people’s mobile phone location history by “pinging” cell phone towers or is this practice an exception to the US v. Jones decision requiring a warrant for a GPS tracker to be placed on a car.  The theory here relies on the third-party doctrine, which holds that we lose Fourth Amendment protection when we disclose information, such as cell phone locations, to a third party such as ATT or Verizon.

Finally, always keep in mind that a person may give law enforcement the right to conduct a search, but the consent must be voluntarily given with full understanding of the person’s rights.

We’ll publish Part 3 – Issues Managing ESI Data in Criminal Cases – on Friday.

So, what do you think?  Do you handle criminal cases and have a lot of eDiscovery? Read more about it in this eDiscovery in Criminal Cases series and see how it may impact you and your organization.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.