Not As Sticky as Syrup: Searching IP Addresses in Vermont Without a Warrant

Vermont: Personally important because it is the State where I get many of my bow ties (along with the ones for the high school mock trial team I coach).

Vermont is legally relevant because it is the land of a state Supreme Court decision on whether you have a legitimate expectation of privacy in IP addresses and warrantless searches of MySpace and Verizon.


The Defendant in State v. Simmons was arrested for stealing a laptop.  The appeal focused on whether the subpoena to MySpace and Verizon was a violation of the Vermont Constitution, which offered broader protections then the 4th Amendment.  State v. Simmons, 2011 VT 69, NaN-P1 (Vt. 2011).

4th Amendment case law has held that “Internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other noncontent data to which service providers must have access.” Simmons, P8, citing, United States v. D’Andrea, 497 F. Supp. 2d 117, 120 (D. Mass. 2007).

The detective investigating the theft of the two laptops got an anonymous tip that someone named “Graham” had one of the stolen laptops and was accessing his neighbor’s WiFi signal.  Simmons, P2.

The tip said the alleged thief lived on the same street as the victims who had their computers stolen.  Id.

The detective determined through public records the Defendant identity and that one of his neighbors (who had her laptop stolen) had a Verizon Internet account.  Id.

The detective conducted informal discovery on Myspace, finding someone by the same name as the Defendant, who lived where the laptops were stolen. Simmons, P3. The photos on MySpace resembled the Defendant’s DMV photo.  Id.

The detective served a subpoena MySpace for the Defendant’s IP address.  The information from MySpace showed the Defendant’s IP address was a Verizon address. Simmons, P3.

A second subpoena was issued to Verizon.

The records from Verizon showed the IP belonged to the neighbor who had her laptop stolen.

The Defendant did not have permission to use the neighbor’s WiFi and the evidence showed he had been accessing her wireless network.  Simmons, P4.

The detective then secured a search warrant for the Defendant’s home, where they found the stolen computer. Simmons, P5.



The Defendant moved to suppress the evidence, claiming the IP was private information that required a warrant under the US Constitution and Chapter 1, Article 11 of the Vermont Constitution.  The trial court denied the motion.  The appeal focused only on the Vermont Constitution.  Simmons, P6.

The Vermont Supreme Court affirmed the lower court’s ruling.  Simmons, P1.  The Court stated:

Nothing in our Article 11 rulings suggest that an internet subscriber address and frequency of use data, unembellished by any personal information, should be treated as private. Article 11 declares that “the people have a right to hold themselves, their houses, papers, and possessions, free from search and seizure.” Vt. Const. ch. 1, art. 11. Absent exigent circumstances not at issue here, Article 11 prohibits a warrantless search of “only those areas or activities that a reasonable person would conclude are intended to be private.”

Simmons, P14, citing State v. Geraw, 173 Vt. 350, 352, 795 A.2d 1219, 1221 (2002).

The Vermont Supreme Court then analyzed whether someone has a legitimate expectation of privacy in an IP address.

Under the Vermont Constitution, a person must have an actual expectation of privacy that society recognizes.  Simmons, P15, quoting Justice Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967).

The Court found that IP information could not reasonably be private.  As the Court explained:

Given the necessary and willing exposure of an Internet user’s access point identification and frequency of use to third party Internet service providers, such information cannot reasonably be considered confidential, especially when a provider such as MySpace openly declares a policy of disclosure. The information appears no more private than a phone number and the number of calls made, or a street address or post office box and volume of mail, neither of which could plausibly be considered private.

Simmons, P15.

Bow Tie Thoughts

It is important to remember this is a state Supreme Court opinion about a state Constitutional right.  However, the logic parallels Federal precedent.  Additionally, the case is scheduled for re-arguments and subject to revision.

The established trend in case law is that ISP information is not protected by the 4th Amendment.  Moreover, this information lacks actual content of communications.  Furthermore, the information is generally limited to IP addresses and number of times an account was accessed.

There will be many cases addressing privacy issues of electronically stored information, such as the warrantless GPS surveillance case to be heard by the United States Supreme Court.

Search Warrants for Facebook, iPods and Personal Computers

In a murder and arson case, the Defendant objected to search warrants that had been issued for his personal computer, BlackBerry, Facebook profile and iPod.  The Defendant claimed the affidavits supporting the warrants did not have any evidentiary nexus between the items to be searched and the alleged criminal activity.  State v. Gurney, 2010 Me. Super. LEXIS 96, at *6-7 (Me. Super. Ct. 2010).  The Defendant also argued the detective’s affidavit did not establish the Facebook profile belonged to the Defendant.  Id.

The Defendant surrendered to the police after the strangulation, decapitation and burning of his girlfriend’s body in his apartment.  Gurney, at *4. 

The police learned of the Defendant’s location after they stopped one of the Defendant’s friends, who ran a stop sign while driving his car.  The friend was on his cell phone talking to the Defendant at the time of the traffic stop.  The stopping officer spoke to the Defendant on the friend’s cell phone and informed the detectives of the Defendant’s location.  Gurney, at *4-5. 

When the Defendant was arrested, he had with him his BlackBerry, his personal computer in sleep mode and additional storage devices.  Gurney, at *7. 

The Court held that the Detective’s affidavit showed that there was a substantial basis that evidence related to any alleged criminal activity would be on the Defendant’s computer and BlackBerry.  First, the Defendant admitted to killing his girlfriend.  Secondly, the Defendant had used his computer to communicate through Facebook.  Third, the Defendant had been on the phone with his friend, justifying the belief evidence could be on the BlackBerry.  Gurney, at *7. 

The Court explained:

The justice could reasonably infer that Mr. Gurney had used his computer to communicate via his Facebook account or in other ways, that he had been using the computer shortly before being apprehended, and that he had used his Blackberry phone to call Mr. Bryant. It was likewise reasonable to believe that there was at least a fair probability that evidence relating to Mr. Gurney’s activities, whereabouts, communications, motives, plans, and state of mind could be stored within those devices. The motion to suppress evidence obtained from the Apple computer, Blackberry cellular telephone, and their attendant storage devices is denied.

Gurney, at *7-8. 

However, the Court suppressed any evidence found on the iPod.  Gurney, at *8.  The Court noted that the detective’s affidavit did not mention the iPod and there was no reason to believe any evidence related to the crime to be on the device.  Gurney, at *8. 

The Court explained the search of the Facebook account in greater detail.  The detectives interviewed the Defendant’s friend at his own home before the Defendant’s arrest.  The friend logged into Facebook with the detectives and was able to see the Defendant had recently logged into Facebook.  Gurney, at *8-9.    When the Defendant was later arrested, he had his computer with him in sleep mode.  Gurney, at *9. 

The Court held that the warrant issuing judge reasonably inferred that the police learned the Defendant’s identity from his friend. Moreover,  there was a strong likelihood the Defendant updated his Facebook account around the time of the victim’s death.  Gurney, at *9.  As such, a judge could find “…a strong probability the Facebook records would hold evidence of [the Defendant’s] contacts, locations, activities, motives, plans, and state of mind shortly before and after” the victim’s death.  Gurney, at *9. 

Bow Tie Thoughts

I found the facts of this case very disturbing. 

The Court’s reasoning in issuing the search warrants for the BlackBerry, laptop and Facebook are all very valid.  People live with technology touching almost every part of their lives.  Specifically issuing search warrants for each does make sense.  It also makes sense to suppress evidence that is not included in the affidavit for a warrant, such as the iPod in this case.

Tech Savvy Judges and the Challenge of Jurors Conducting Online Research

Why would a juror’s online research be a “problem” for a criminal defendant?

Because an “extrinsic influence on a jury’s deliberations violates a defendant’s Sixth Amendment rights to an impartial jury, to confront witnesses against him, and to be present at all critical stages of his trial.” United States v. Dyal, 2010 U.S. Dist. LEXIS 72489, at *38 (D.S.C. July 19, 2010).

One tech savvy judge tried to head off any Constitutional challenges that may befall modern jurors who are packing SmartPhones and a high speed Internet connection. 

The Judge instructed the jury, both orally and in writing, the following: 

I remind you that during your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet device, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Dval, at *8-9. 

Despite these instructions, one curious juror did a Google search and looked up two words on Wikipedia and the Free Miriam Webster Dictionary.  Dval, at * 30-31.  When the Googling Juror brought this to the attention of the Jury Foreman, he was told Wikipeda is not reliable. Dval, at *52.  Moreover, when the Googling Juror tried sharing this information with others, he was cut off from discussing it.  Dval, at * 52-53. 

The Court held a hearing after the online research was brought to light to see if the jury had been tainted in its decision.   

After questioning of each juror, the Court found that the online research was juror misconduct, because the information was an improper external influence.  However, this was not prejudicial per se.  Dval, at * 55.  

The Court found that there was “no reasonable possibility that the external influence caused actual prejudice.”  Dval, at * 55.  This was based on the extensive questioning of all the jurors, which showed the Googling Juror had little to no influence on anyone and secondly, the terms he found were consistent with the jury’s own understanding of the terms.

Bow Tie Thoughts

It is very refreshing to see a judge try to head off problems in an age where people can whip out a SmartPhone and conduct an internet search for an instant answer. 

Judge Cameron McGowan Currie’s went out of his way to remind the jurors what not to do during deliberations, specifying naming some of the most commonly used social networking sites.  The jurors to their credit also were quick to avoid inappropriate conduct.

This will not be the last time a Court will need to do this sort of review, but it is a great roadmap on what to do when there is a juror conducting online research.

Harmless Error in Bank Robbery Conviction with Inadmissible Character Evidence from MySpace Profile

A Defendant in Georgia was convicted of multiple armed bank robberies and possession of a firearm by a convicted felon.  The Defendant was sentenced to 2,005 months in prison for his crimes.

On appeal, the Defendant claimed the District Court abused its discretion in admitting the “bad character evidence” of the Defendant’s MySpace profile, subscriber report and photographs to prove he committed the bank robberies “like a gangster.”  United States v. Souksakhone Phaknikone, 2010 U.S. App. LEXIS 9475 (11th Cir. Ga. May 10, 2010). 

The Court of Appeals found that the MySpace evidence was improperly admitted, but since there was overwhelming evidence of the Defendant’s guilt, it was harmless error. 

Government’s Attempted Use of MySpace Evidence

The Defendant was arrested after a string of bank robberies that culminated with a high-speed car chase that ended with the Defendant getting caught in barbed wire after attempting to flee on foot.  Phaknikone, at *2-4.  The Defendant confessed to several robberies after his arrest.  Phaknikone, at *4-5. 

The Government tried several times to admit the Defendant’s MySpace profile during the trial.  The MySpace profile was a prosecutor’s dream come true, complete with the profile name “Trigga FullyLoaded,” photographs of him with a gun, $ 100 bills that floated down the screen and rap music playing. Phaknikone, at *8-9. 

One theory the Government offered to use the MySpace profile photos was that the photos were “inextricably intertwined with [the Defendant’s] charged offense of possession of a firearm by a convicted felon.”  Phaknikone, at *6-7. 

After the jury was empanelled, the Government tried again to bring in MySpace photos to show the Defendant was “an individual who has access to having a gun, as shown and as evidenced by the brazen nature with which he publishes it to every single person on the internet through a MySpace account. . . . [I]t shows knowledge, it shows familiarity with guns.” Phaknikone, at *9.

The Government ultimately sought the admission of the Defendant’s MySpace profile, two photos and the subscriber report, which listed the “user’s unique identification number, registered first and last name, location, email address, date of registration, and IP address at registration.” Phaknikone, at *7-8. 

There is a complicated trial history with the various attempts to bring in the MySpace evidence.  One witness during the trial had robbed a bank with the Defendant.  The witness testified he knew the Defendant as “Trigga” and knew the Defendant also had a MySpace profile.  Phaknikone, at *11-12.  The witness further identified the Defendant from a MySpace photo after being shown the photo on direct examination, thus allowing the Government to lay the foundation for the MySpace evidence.  Phaknikone, at *12.

The District Court allowed the photos from the MySpace page to be admitted into evidence.  Phaknikone, at *12. However, the District Court viewed the profile itself and subscriber report as character evidence and inadmissible.  Phaknikone, at *12-13.

Not one to give up, the Government tried again to admit redacted portions of the MySpace profile and subscriber report.  Phaknikone, at *13. This redacted portion was ultimately admitted after testimony from a MySpace employee.  Phaknikone, at *15.

The Government in closing argument referred to the Defendant as “Trigga” and used a MySpace photo of the Defendant holding a gun in a car.  Phaknikone, at *15.  The jury was issued a limiting instruction that the evidence “could be considered to prove only intent or absence of mistake or accident.”  Phaknikone, at *15.

Character Evidence Recap

Evidence hornbooks go into great detail discussing character evidence.  The intersection of character evidence and social networking will fill a solid chapter in future publications, if not a book of its own. 

The Defendant argued on appeal that his MySpace profile was offered for no other reason other than “to show action in conformity therewith.” Phaknikone, at *18-19, citing Fed. R. Evid. 404(b).

The Court of Appeals agreed that the MySpace profile was inadmissible character evidence, but that the error was harmless.  Phaknikone, at *19.

The test for determining whether a trial court abused its discretion in admitting character evidence under Federal Rule of Evidence Rule 404(b) is as follows:

1) The evidence must be relevant to an issue other than the defendant’s character.

2) As part of the relevance analysis, there must be sufficient proof so that a jury could find that the defendant committed the extrinsic act.” United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc) (footnote omitted).

3) The probative value of the evidence must not be “substantially outweighed by its undue prejudice and the evidence must meet the other requirements of Rule 403.”

Phaknikone, at *19.

Courts apply this test “whenever the extrinsic activity reflects adversely on the character of the defendant, regardless whether that activity might give rise to criminal liability.” Phaknikone, at *19-20, citations omitted.

As the Court noted prior bad acts can be admissible to prove, “‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’” Phaknikone, at *20, citing Fed. R. Evid. 404(b).

Moreover, the character evidence rule under Rule 404(b) “’is a rule of inclusion . . . [and] 404(b) evidence, like other relevant evidence, should not lightly be excluded when it is central to the prosecution’s case.’” Phaknikone, at *20, citations omitted.

Proving Identity with the MySpace Profile

The Government’s use of the MySpace profile had to pass the “particularly stringent” analysis that the extrinsic evidence showed a “signature” crime.  Phaknikone, at *20-21.  As the Court summarized:

“When extrinsic offense evidence is introduced to prove identity, ‘the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused. In other words, the evidence must demonstrate a modus operandi.'” Phaknikone, at *21, citations omitted. 

Courts require that the extrinsic acts are uniquely the defendant’s “signature” crime to “insure that the government is not relying on an inference based on mere character–that a defendant has a propensity for criminal behavior.” Phaknikone, at *21, citations omitted. 

MySpace Evidence Inadmissible Character Evidence

The Court of Appeals wasted no time holding the MySpace profile failed the first part of the Miller test: The profile was not evidence of identity.  Phaknikone, at *22.

The Court found the subscriber report only contained the Defendant’s nickname, which the Government’s witness stated he knew on direct examination.  Phaknikone, at *22.

The photos from the MySpace profile offered nothing showing a “signature” crime or “a modus operandi about the bank robberies.”  Phaknikone, at *22.

Since the MySpace photos and subscriber report failed to show any evidence of modus operandi to prove identity, the evidence was inadmissible. Phaknikone, at *23.

The Court held:

The MySpace evidence is classic evidence of bad character, which was offered by the government to prove only “action in conformity therewith.” Fed. R. Evid. 404(b). The government wanted the jury to infer that, because Phaknikone is willing to publish these kinds of photographs online, under an incendiary alias, he is a gangster who is likely to rob banks. The district court abused its discretion by admitting the MySpace evidence. Phaknikone, at *23.

A Harmless Abuse of Discretion in Admitting the MySpace Evidence

The Court of Appeals held the admission of the MySpace evidence was harmless, because there was “overwhelming evidence” of the Defendant’s guilt.  Phaknikone, at *24.  The Government’s evidence included confessions to four of the bank robberies, in addition to other evidence of the Defendant’s guilt.  Id. 

Bow Tie Thoughts

The Court’s reasoning and review of Federal Rule of Evidence 404(b) is commendable.  Given the volume of information on social networking sites, prosecutors would be foolish not to search MySpace, Facebook or Twitter about a specific defendant. 

However, just because a prosecutor can find out about a defendant’s bad character on Google does not mean it is admissible.  One possible reason the Court spent so much time on the analysis of the MySpace evidence (besides exercising their Constitutional duties), was a warning shot to prosecutors: Don’t drag in evidence unless it is truly relevant and not to convict a defendant with “bad character” evidence.  While the Court found it was a harmless error, the amount of time spent on the issue shows it is not a harmless issue.

The Low Speed Chase that Gives Us Admissible Cell Phone Photo after a Warrantless Search

A police officer stopped a car driving with a flat tire, cracked windshield and its bright lights on.  People v. Gorostiza, 2009 Cal. App. Unpub. Lexis 9494 at *1.  

The passengers might have been hoping, “There is nothing to see here.” 

After stopping the car with the Defendant and two passengers, the Defendant drove away from the stopping officer while the police officer opened the car door.  As one can suspect, the police officer engaged in a low speed chase.

The Defendant again tried to start another low speed chase after being stopped a second time, but the car would not re-start.  One passenger escaped on foot after the car was stopped.  Gorostiza, at *2.  The owner of the car, one of the passengers but not the driver, gave consent to search the car. 

Search Incident of Arrest of Cell Phone Photos

The police found a loaded pistol-grip 12-shot gun during the search of the car.  Two cell phones were also found, one with a dead battery and the other in the driver’s area. Gorostiza, at *3.

The police officer opened the working cell phone and saw a photo that resembled the Defendant holding the shotgun found in the car.  Gorostiza, at *3. 

The police officer accessed the cell phone menu and opened the “My Albums” folder.  Id.   The police officer found two additional photos of the Defendant holding the gun.  Id.

The Defendant claimed the photos were not of him and he was being framed when questioned on the cell phone photos. Gorostiza, at *3-4.


Investigation and Search of the Cell Phone

Another investigating police officer sent the cell phone photos via MSS message to another investigating officer’s email.  The cell phone photos were printed and used at the criminal trial of the Defendant.  Gorostiza, at *5. 

Where the Cell Phone Photos Properly Admitted?

The Defendant tried to suppress the cell phone photos, claiming an improper search incident of arrest because the cell phone was “not a container” or part of a person.  Gorostiza, at *5.   The Defense further argued the cell phone deserved “heighten protection.”  Gorostiza, at *5.

The Court, as a preliminary matter, found the Defendant had a reasonable expectation of privacy in one of the cell phones because the police officer had knowledge the phone belonged to the Defendant.  Gorostiza, at *6-7.

The Court found the search of the car that found the shotgun was proper, because the police officer had permission to search the car by the owner. Gorostiza, at *7. 

The cell phone was found in a leather case, which at the time had unknown contents.  The image of the Defendant holding the gun was visible once removed from the leather case.  Gorostiza, at *7.

The Court held that the photo that was seen on the cell phone screen was a proper search, because it was found in a “closed container” during a valid search after the owner gave permission to search. Gorostiza, at *8.

Dodging the Bigger Issue

The bigger issue was whether the police officer conducted a proper search of the cell phone by exploring the menu items and additional photos in a sub-folder.  Did the consensual search of the car allow the police officer to search for additional photos on the phone? 

The Court dodged these issues, noting that two additional photos were very similar to the first photo found pursuant to a valid search.  The Court stated:

Because the admission of the additional photographs seized during the further search of the cell phone was not prejudicial, we need not determine additional questions raised by the defendant in his argument. For example, we need not determine if the consent extended to a search of the electronic contents of the telephone, we need not determine if cell phones are subject to heightened privacy interests, and we need not determine if Preis’s [the police officer] knowledge that the telephone belonged to defendant should have curtailed his search of the interior of the cell phone. Gorostiza, at *13.

Bow Tie Thoughts

The issue of whether a cell phone has heightened protection during a search will one day be decided.  More importantly, whether searching the menu features of a cell phone would be a valid search in similar facts.  This case may have addressed these issues if the photos had been different, such as firing the gun in a different location, or perhaps committing an act of vandalism or other crime. 

I am very glad this is an unpublished opinion because of the preservation methods used by the police. The collection was potentially problematic because the State used no forensic or defensible tools to collect the cell phone photos.  While the State’s actions were likely acceptable in sending the photos to a police officer, it carried risk. 

The collection methodology of sending a MSS message of the photo from the defendant’s phone to an investigating officer can open an ugly can of worms of destroying data, which could cause a mistrial or severely undermine a prosecutor’s case.  It could provide an entertaining cross-examination by a defense attorney on what procedures were undertaken to ensure the defensibility of the evidence, especially if the defense offered a collection expert to discuss proper procedures to preserve cell phone evidence. 

Products from Paraben Corporation are specifically designed for forensically imaging cell phone contents [Bow Tie Note: D4 is business partners with Paraben Corporation].  These products are currently being used by electronic discovery specialists, law enforcement, and even the US military in Iraq imaging the cell phones of insurgents who use cell phones to trigger road side bombs.  Other products are also on the market.  When proper tools are commercially available, why risk destroying key evidence by sending text messages from the defendant’s phone during an investigation?

No Reasonable Expectation of Privacy in Abandoned CD’s

A criminal defendant was convicted of possession of child pornography, based on CD’s and other media he left after vacating an apartment.  The Supreme Court of New Hampshire found he had no expectation of privacy in the abandoned media and that the search of the media was proper.  State v. Howe, 159 N.H. 366, 373 (N.H. 2009).

The Defendant rented a room that he was asked to vacate after failure to pay rent.  Howe, at 370.  The property owners cleaned out the apartment after the date to vacate had past. 

While cleaning out the apartment, the owners found in a bureau CD’s, memory cards and a manila folder.  Id.  The folder contained printed images that were pornographic in nature, with some depicting children.  Id

The property owners called the police who took the abandoned material and searched the CD’s.  Additional child pornographic material was found and the Defendant was arrested.

Did the Defendant Have a Reasonable Expectation of Privacy in the CD’s?

Short answer: No. 

The Defendant claimed he did not abandon the media in the bureau, claiming, it was only “temporarily” abandoned while he was on vacation, thus a search warrant was required to search its contents.  Howe, at 371-3. 

The Supreme Court of New Hampshire disagreed. The Defendant had a deadline to vacate the apartment and the CD’s were found 5 days after the move out date (a total of 12 days after being given a deadline).  Howe, at 373.  The New Hampshire Supreme Court noted that Federal Courts have found only 2 days necessary for abandonment.  Id.

Since the Defendant had vacated the property, there was no privacy interest that would have required a search warrant to review the CD’s.  As such, the CD evidence was properly admitted. Id.

Bow Tie Thoughts

People lose (or forget) thumb drives and removable media all the time.  A thumb drive, DVD or external hard drive might contain trade secrets, files protected by the doctor-patient privilege or electronically stored information of a personal nature.  While State v. Howe is an extreme example of someone who deserved to go to jail, abandoned ESI may haunt individuals in ways they never expect.

Things to Think About for Your Rule 26(f) Meeting…

Young girl with finger on lips looking up, isolated on white bacIn a case management hearing, the parties were directed to consider the following electronically stored information (ESI) issues at their Rule 26(f) conference for drafting their proposed Rule 16(b) order:

With regard to any discoverable electronically stored information (ESI) the parties may have, the Court further requests that the joint discovery plan also include any issues and concerns related to the following:

a. What ESI is available and where it resides;

b. Ease/difficulty and cost of producing information;

c. Schedule and format of production;

d. Preservation of information; and

e. Agreements about privilege or work-product protection.

 Wallace v. Tindall, 2009 U.S. Dist. LEXIS 89669, *2-3 (W.D. Mo. Sept. 29, 2009).

It is good to see Courts ordering parties to consider issues such as whether ESI is reasonably accessible, the form of production, preservation and privilege concerns in case management orders.  While the above order is actually brief on the e-Discovery issues, consider the new California Rules of Court section 3.724(8), which require the following topics to be discussed at the “Meet & “Confer:”

Any issues relating to the discovery of electronically stored information, including:

(A) Issues relating to the preservation of discoverable electronically stored information;

(B) The form or forms in which information will be produced;

(C) The time within which the information will be produced;

(D) The scope of discovery of the information;

(E) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

(F) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

(G) How the cost of production of electronically stored information is to be allocated among the parties;

(H) Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information;

Case management orders such as the above and the new California Rules of Court acknowledge the reality that every case will have electronically stored information of some kind.  Lawyers must deal with these realities early and not wait for them to become problems.

An Email State of Mind: Confessions of an Online Fraudaholic

GuiltyA Criminal Defendant maintained an online business that was a shame: Orders were made and money paid, but the items ordered were either not sent or non-conforming goods instead.  This is all fun and games for the Defendant until an undercover FBI agent placed orders in a sting operation. 

The Defendant challenged the admission of customer email messages from the trial as they “were hearsay and that their admission was highly prejudicial and violated the spirit of the Confrontation Clause of the Sixth Amendment.”  United States v. Levy, 2009 U.S. App. LEXIS 14163, 8-9 (4th Cir. Va. June 30, 2009).   The Court did not agree.

Background Facts: Online Business Fraud

An online business owner ran two companies selling women’s fashions.  The Defendant served as the victim’s supplier.  Levy, 1-2. Both online businesses failed because of customer’s complaining they did not receive the ordered merchandise and demanded refunds.  Levy, 2-3.

The Defendant set up her own online business, with a laundry list of people not getting what they ordered for several years.  

Shopping SpreeOne person made several attempts to get her merchandise through the Defendant’s website, which cost the Defendant a transaction fee with each attempt.  The Defendant sent the customer fraudulent documents from a make believe law firm that included a falsified complaint, apparently to scare the victim off.  Levy, 3-4.  

An undercover FBI agent placed an order through the Defendant’s website and true to form, did not get what she ordered.  The FBI eventually searched the Defendant’s house after the FBI orders were never shipped. Levy, 4.

The Government introduced into evidence at trial emails collected from the Defendant’s computer.  The emails were exchanges with angry customers and the Defendant’s replies.  Levy, 5.

The Defendant was convicted of three counts of mail fraud and four counts of wire fraud.  Levy, 5-6.  The Court estimated at least eighty-two victims who suffered $ 168,300.77 in damages.  Id. The Defendant was sentenced to 46 months’ imprisonment and pay $ 168,300.77 in restitution. Levy, 1.

The Defendant’s appealed followed.

Email & Hearsay: The Truth of the Matter Asserted

The Defendant challenged the customer email evidence on appeal as 1) hearsay and 2) the evidence was highly prejudicial and violated the 6th Amendment Confrontation Clause.  Levy, 8-9.

The Court did not agree.  The Court held the email messages were not hearsay, because they were not offered for the truth of the matter asserted.  Levy, 9.

The customer email messages were offered so the Defendant’s party admissions in her email would show the context of the Defendant’s “intent, lack of mistake, and notice.” Levy, 9.

As such, the customer email messages were not hearsay and thusly did not violate the Confrontation Clause.  Levy, 9.

The Defendant’s conviction was upheld, but her sentence was vacated on sentencing grounds and remanded. Levy, 13.

Bow Tie Thoughts

Many of the e-Discovery admissibility examples are coming from criminal cases, since they go to trial more.  As more civil cases go to trial, Courts will likely look to the “e-admissibility” cases from criminal convictions for guidance in authenticating ESI, addressing hearsay and other evidentiary issues.

Request for Production: Any and All Documents in the Past 46 Years Supporting the Overthrow of a Communist Government

Toy Soldier Sometimes there is a case that is just too unique to pass up.  This is one of those cases.

The Defendants in a criminal case were charged  in a conspiracy to ship weapons to Laos to overthrow the Communist Government.  United States v. Jack, 2009 U.S. Dist. LEXIS 43120, 2-3 (E.D. Cal. May 9, 2009).  The charges included: 

1)      Conspiracy to violate the Neutrality Act.

2)      Receive and possess firearms and destructive devices; and

3)      Export listed defense items without a State Department license;

4)      Conspiracy to kill, kidnap, maim and injure people in a foreign country;

5)      Conspiracy to possess missile systems.  Jack, 2-3.

The Defendants sought discovery from 1961 to 2007 documenting communications between different government agencies and the Defendants regarding U.S. “policy, planning or conduct towards the government of Laos.”  Jack, 6. 

The Defendants argued this discovery spanning Presidents Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush 1, Clinton, and Bush 2, was “material to the defendants’ state of mind with regard to the alleged conspiracies as well as to their possible defenses of outrageous government conduct, entrapment and defense of others.” Jack, 6.

The Defendants claimed they this evidence would show they would not have taken action against Laos without the approval of the United States.  Jack, 6.

The Defendants further argued that this evidence would show the United States was not “at peace” within the meaning of the Neutrality Act.  Jack, 6.

The Possible Electronically Stored Information: Wiretaps & Email

Request for ProductionThe Defendants sought production of “all recordings or documents resulting from the interception of their telephone, email or other communications by presidentially approved warrantless interception, by the NSA and/or by a NARUS computer.”  Jack, 11. 

The Defendants cited various news articles and court decisions to highlight the post-September 11, 2001 terrorist attacks intelligence gathering practices to show NSA and government eavesdropping might have intercepted phone and email messages from the Defendants.  Jack, 11. 

The Government’s Take on the Defendants’ Requests

Somewhere, some Assistant United States Attorney had many late nights briefing a discovery opposition.  The Defendants sought documents regarding assassination attempts and 46 years worth of documents. 

The Prosecution claimed that the government produced all discovery pertaining to call history, court-ordered wiretaps, and emails seized according to search warrants.  The Prosecution stated that there was no NSA or other government agencies with intercepted communications.  Jack, 18-19.

Enter the Court

I am sure the Judge had a few choice private moments sitting in front of his computer considering the underlining facts of conspiracy to overthrow of a government and posses a missile system.

Things generally get bumpy when a Court states it had a “difficult time ‘getting its arms around’ this motion.” Jack, 21.  On one side were Defendants who wanted 46 years worth of documents and on the other U.S. Attorneys who thought the trial was a mere formality for Defendants who were guilty as charged.  Jack, 21. 

Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), the prosecution must produce discovery “”which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense.”  Jack, 22. 

If you like history, politics and enjoy cases involving Iran Contra, the Court had very detailed analysis of how the United States being in an undeclared war is not being “at peace” with that country.  Jack, 35-37.  However, that is beyond the scope of this blog. 

The Court ordered the Government to produce any and all documents or communications from January 1, 2005 to June 3, 2007 that evidenced any covert or overt military ops with respect to Laos.  Jack, 37-38.

One can imagine how the government would conduct a diligent search: constructing key words and possible redactions in the name of national security for any production.  

Warren Redacted

As for the Defendants’ request for any “recordings or documents obtained by the government constituting or describing cell telephone calls, emails or other communications,” the Court denied the request.  Jack, 41-42.

The Court reasoned that since the Government had produced all communications they had pursuant to court-ordered wiretaps and search warrants, there was no reason to compel discovery that did not exist.  Jack, 41-42.

Bow Tie Thoughts

“Jack” is a wild case.  The fact the Government had to produce material from January 2005 to June 2007 regarding military operations or plans in Laos is an impressive win for the Defendants.  While it is unknown how the government maintains such information, the search would be very interesting to observe.