Court Suppresses E-discovery in Criminal Investigation for Government’s Bad Faith Seizure of Harddrives
U.S. v. Metter, No. 10-CR-600 (DLI), 2011U.S. Dist. LEXIS 155130 (E.D.N.Y. May 17, 2012)
In this securities fraud action, the government had asserted that the defendant Metter had furthered the fraudulent scheme using his home computers, and after obtaining a valid warrant, seized four hard drives, among other items. The government also seized 61 hard drives, pursuant to a valid warrant, from two companies, and also obtained email from the internet search providers of Metter and other co-defendants. The Government made images of the hard drives and promptly returned them to their respective owners.
In November, 2010, the government stated that it intended to provide the defendants with image copies of the hard drives by January, 2011. At that point, the government had not begun a privilege review, and could not estimate when the review would be completed.
At a status conference in February, 2011, the government stated that it would provide a list of computers and emails seized by March, 2011. It also stated that it intended to produce all imaged evidence (without review) to all defendants, and then later conduct a privilege review. The government would also set up a “taint team” to review the hard drives and email accounts for privilege issues. Metter’s attorney expressed concern about the volume of confidential, irrelevant information of his client which would be made available to the other defendants, suggesting that each attorney review his clients’ material to weed out nonresponsive information. The government objected to defendants’ counsel making determinations that information was outside of scope. The court ordered the government to produce an inventory of the computers seized, and for defense counsel to review their clients’ computers for what they believed to be irrelevant or privileged evidence.
The government’s February 28, 2011 status report stated that the defendants could inspect the hard drives at the government’s office and lodge objections to evidence outside the scope of the warrant. However, it also indicated that any attorney could request a copy of any other seized hard drive. Metter immediately objected to the dissemination of the information on the hard drives without any review.
Fifteen months after the seizure, the government had still not conducted its review of the seized evidence to determine whether any information was outside the scope of the warrant, and had not determined when its privilege review would be complete.
Metter filed a motion to suppress the evidence, stating that the government’s significant delay violated the Fourth Amendment. The government argued that seizure and off-site review of evidence was permissible under the Fourth Amendment, defendants had not suffered harm because the government had immediately returned the evidence, and that the delayed review was reasonable.
The court found that the reasonableness of the delay between seizure and review of electronic evidence required a case-by-case factual analysis, but that under the facts of this case, the government’s seizure was unreasonable.
The court first observed that as an image of an electronic document contained the same information as the original documents, the retention of images by the government raised the same privacy concerns as retention of the original documents. Documents, both paper and electronic, raised different concerns than other types of evidence, because of the volume of information. Thus, courts permitted the government to examine documents which could be outside the scope of the warrant to determine whether they fell within the scope of the warrant. Similarly, the complexity of electronic evidence led courts to give the government some leeway in searching for relevant evidence, including the ability to search the evidence offsite.
The court acknowledged that the warrants obtained by the government and the imaging process itself were reasonable. The problem was the government’s delay in beginning review of the evidence. As of the date of the hearing, the government had no plan to begin review of the evidence.
The government’s retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.
Id. at *29. The court also found fault with the government’s intent to release images of the hard drives to the other defendants:
The Court agrees with Defendant that the release to the co-defendants of any and all seized electronic data without a predetermination of its privilege, nature or relevance to the charged criminal conduct only compounds the assault on his privacy concerns. It underscores the government’s utter disregard for and relinquishment of its duty to insure that its warrants are executed properly.
Id. at *29-*30.
Suppression of evidence is warranted when the government effects a “widespread seizure” of items outside the warrant’s scope, and it acts in bad faith. The first prong of the test was met by the government’s seizure of all information contained on the drives and the email accounts. The government’s bad faith was demonstrated by its promises to review the evidence, and its failure to do so after requests by both defense counsel and the court. Metter’s motion to suppress the electronic evidence was granted.