Criminal Law

Understanding eDiscovery in Criminal Cases: eDiscovery Trends

Criminal cases have long been thought of as an arena devoid of electronic discovery issues. But attorneys who regularly handle criminal cases know that’s not the case. So, are there any guidelines and best practices for handling eDiscovery in criminal cases?  There are, and we’re going to discuss them in a webcast next week.

But first, this week’s eDiscovery Tech Tip of the Week (which I forgot to post last Friday, oops!) is about Stemming and Synonym Searching.  When performing keyword searching, it may be difficult to think of every variation of a word to search for or other words that have the same meaning that may also be relevant.  Stemming searching is a way to catch those variations of terms and Synonym searching is a way to catch other terms that mean essentially the same thing as the desired term.  Both mechanisms help expand the potential recall of your search and enable you to locate additional important ESI to your case that might otherwise be missed, simply because those additional relevant terms weren’t identified.  You don’t want to miss an important document just because you didn’t think to search for a variation of the word, do you?  Didn’t think so… :o)

To see an example of how Stemming and Synonym Searching is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Anyway, on Wednesday, March 21 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Understanding eDiscovery in Criminal Cases In this one-hour webcast that’s CLE-approved in selected states, we will take a look at the history of the development of standards and highlight specific issues of importance regarding eDiscovery in criminal matters. Topics include:

  • Overview of Rules for Criminal Matters
  • How Data is Acquired in Criminal Matters
  • Common Data Types and Examples of Cases
  • Data Exchange Formats and Protocols
  • Time Issues Specific to Criminal ESI
  • Working with Social Media as Evidence
  • Border Entry Considerations and Examples
  • Resources for More Information

Once again, I’ll be presenting the webcast, along with Tom O’Connor, who recently wrote an article about eDiscovery in criminal cases that we covered as a terrific five part informational overview.  I love it when Tom provides the topic and makes my life easier!  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you’re interested in eDiscovery for criminal law, this is the webcast for you!

{Side note: with two posts this week from Tom on his ALSP series, his thought leader interview tomorrow and this post, it’s unofficially Tom O’Connor week on the blog!}

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held on Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I’m on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

So, what do you think?  Do you struggle with eDiscovery in criminal cases?  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.

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.

Understanding eDiscovery in Criminal Cases: 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.  Here’s the first part.

Introduction

Criminal cases have long been thought of as an arena devoid of electronic discovery issues.  In fact, in 2012 eDiscovery expert Craig Ball wrote in a column regarding the then recently published “Recommendations for Electronically Stored Information Discovery Production in Federal Criminal Cases,” that “… apart from meeting Brady obligations, I think most lawyers regard criminal law as an area where there is no discovery, let alone this new-fangled e-discovery.”

But attorneys who regularly handle criminal cases know that was not the case then, and it is certainly not the state of the field now.  This paper shares a short history of the development of standards for eDiscovery in criminal matters, focusing on specific examples from the Federal court system. It also highlights main issues of importance regarding eDiscovery in criminal matters.

BACKGROUND

In 2004, Judge Marcia Pechman of the Western District of Washington presided over the white-collar case against Kevin Lawrence and his company, Znetix.  That case had nearly 1.5 million scanned electronic documents which at the time was considered an extremely high volume and caused logistical problems for both the parties and the Court.  In 2005, after that trial had concluded, Judge Pechman convened a group of attorneys from the U. S. Defenders Office and the US Attorney in Seattle to discuss more efficient and cost-effective ways to deal with electronic documents in large cases.  This group included Russ Aoki, then a Criminal Justice Act (CJA) Panel attorney appointed to represent Mr. Lawrence and now Coordinating Defense Attorney in complex matters for the Defenders.

That group created a set of best practices policies for large document cases and wiretap surveillance evidence. Those policies were in effect in the Seattle federal court as a local rule for many years before the document mentioned by Craig Ball in his column.  Several other groups then began meeting around the country, eventually resulting in the 2012 protocol which was actually a project of a Joint Technology Working Group of federal criminal practitioners created by the Director of the Administrative Office of the United States Courts (the supervising agency of the U.S. Defenders Office) and the U.S. Attorney General.

The point of this timeline is to show that although attorneys working in the criminal areas have a duty to preserve and produce electronically stored information (ESI) just as their civil brethren do, most state and federal criminal discovery is statutory, or rule-based.  Constitutional concepts apply in much the same manner as the FRCP guide civil matters, to ensure a fair trial and due process, and include the right against self-incrimination and the right against unreasonable searches and seizures.

But criminal cases involve some issues specific to that practice, and it is those we will now discuss.

Issues

An excellent overview of all the issues involved in criminal eDiscovery practice can be found in Criminal Ediscovery: A Pocket Guide for Judges. A 2015 publication of the  Federal Judicial Center authored by Sean Broderick, National Litigation Support Administrator, Administrative Office of the U.S. Courts, Defender Services Office; Donna Lee Elm, Federal Defender Middle District of Florida; Andrew Goldsmith, Associate Deputy Attorney General & National Criminal Discovery Coordinator U.S. Department of Justice; John Haried, Co-Chair, eDiscovery Working Group — EOUSA U.S. Department of Justice and Kirian Raj, Senior Counsel to the Deputy Attorney General U.S. Department of Justice.

That work focuses on a number of issues that are beyond the scope of this document and should be consulted as a resource.  This discussion, however, will focus on the following issues:

  1. Overview of Rules for Criminal Matters
  2. Issues Managing ESI Data in Criminal Cases
    • How Data is Acquired
    • Common Data Types
    • Data Exchange Formats
    • Time Issues Specific to Criminal ESI
  3. Working with Social Media as Evidence
  4. Border Entry

We’ll publish Part 2 – Overview of Rules for Criminal Matters – on Wednesday.

So, what do you think?  Do you handle criminal cases and have a lot of eDiscovery? Read more about it in the following parts of our 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.

Wife’s Fitbit Leads to Murder Arrest for the Husband: eDiscovery Trends

At both the Master’s Conference session that I moderated in San Francisco on Tuesday and the webcast that I conducted yesterday, the topic of discovery from IoT (Internet of Things) devices came up.  This story illustrates how discovery from IoT devices is becoming more and more important, especially in criminal cases.

According to an article in Business Insider, data from a murdered woman’s Fitbit led Connecticut police to arrest her husband in connection with the death.  After more than a year of investigations, the Hartford police charged Richard Dabate with his wife’s murder, tampering with physical evidence, and making false statements to the police after her Fitbit showed she was still walking around an hour after he claimed she was murdered by an intruder.

In December 2015, Connie Dabate was shot in her home with a .357 Magnum that her husband, Richard, had bought a few months before.  Dabate stated that, after getting a house alarm notification on his phone, he got back around 9 a.m. when he spotted an intruder, he said: a 6’2” man with a stocky build wearing a “camouflaged suit with a mask.”  Dabate said that, at about that time, he heard his wife come home and yelled for her to run, but the intruder shot her to death after a short struggle.  Dabate also said that the intruder tied him to a chair and began burning him with a torch, but he struggled with the intruder, eventually getting the torch from the intruder and causing him to flee.

Cops brought in K-9’s to pick up the scent of an intruder, but they could only pick up Dabate’s scent.  With no other evidence regarding an intruder, cops eventually obtained search warrants for Connie Dabate’s Fitbit, both of their cell phones, computers and house alarm logs.

According to an article in CNN, this timeline of activities conflicted with the story that Dabate told the police:

  • At 9:01 a.m. Richard Dabate logged into Outlook from an IP address assigned to the internet at the house.
  • At 9:04 a.m., Dabate sent his supervisor an e-mail saying an alarm had gone off at his house and he’s got to go back and check on it.
  • Connie’s Fitbit registered movement at 9:23 a.m., the same time the garage door opened into the kitchen.
  • Connie Dabate was active on Facebook between 9:40 and 9:46 a.m., posting videos to her page with her iPhone. She was utilizing the IP address at their house.
  • While she was at home, her Fitbit recorded a distance of 1,217 feet between 9:18 a.m. and 10:05 a.m. when movement stops. If Richard Dabate’s claims were correct, detectives say the total distance it would take the victim to walk from her vehicle to the basement, where she died, would be no more than 125 feet.

Dabate later admitted to having an extramarital affair where he impregnated a woman.  Oh, and five days after the incident, Dabate also attempted to make a claim for his wife’s life insurance policy for $475,000, police said.  He is due to appear in court today.

It seems IoT devices are becoming more and more important to criminal investigations.  It seems like only a matter of time before that becomes the case for civil litigations as well.

So, what do you think?  Have you been involved in any cases where data from IoT devices was at issue?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

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