Electronic Search and Seizure

The Comprehensive Drug Testing decision addresses this risk and reins in the routine practice of “grab everything now, look at it later.” In the decision, the Ninth Circuit not only asserts its judicial authority to supervise the execution of search warrants, but also provides protocols that courts in the Circuit should follow in granting search warrants for ESI and in regulating ESI searches once a warrant has been executed.

The decision comes three months prior to the effective date of amendments to Federal Rule of Criminal Procedure 41 that specifically address search warrants for ESI. The amended Rule provides guidelines for the handling of ESI search warrants that are less detailed and stringent than the protocols established in Comprehensive Drug Testing. Since the Ninth Circuit decision is grounded in the Fourth Amendment, its requirements ' if not otherwise overruled ' should survive the amendment of Rule 41, and may guide the application of the amended Rule in other jurisdictions.

Case Background

In 2002, Major League Baseball (MLB) and the MLB Players' Association (MLBPA) entered into a collective bargaining agreement that appointed Comprehensive Drug Testing, Inc. (CDT) to administer a suspicionless steroid testing program for the MLBPA. Players were assured that test results would remain anonymous and confidential. Federal agents investigating Bay Area Lab Cooperative (BALCO), which they suspected of providing steroids to MLB players, learned that 10 players had tested positive for steroid use through the CDT program. They secured a grand jury subpoena in the Northern District of California that sought all MLB “drug testing records and specimens” in CDT's possession.

CDT and the MLBPA moved to quash the subpoena after efforts to negotiate a compliance agreement failed. The day the motion to quash was filed, the government obtained a search warrant in the Central District of California authorizing a search of CDT's facilities for electronic records related to the 10 players. The government, however, seized and promptly reviewed the drug testing records of hundreds of MLB players and others. The government also obtained a search warrant in the District of Nevada for the records maintained by Quest Diagnostics, which had performed the actual scientific testing and possessed the physical samples.

CDT and the MLBPA moved for the return of the property seized by the government during the execution of the search warrants on the grounds that the government had failed to comply with search procedures specified in the warrant. The motion was granted in the district court and affirmed by the Ninth Circuit en banc.

En Banc Decision

The Ninth Circuit's en banc opinion not only reverses its trend of leaving the particular details of the search of electronic records largely to the government and its agents, but also provides guidance on the protocols for granting a search warrant for ESI and for supervising the subsequent ESI review. While acknowledging that some degree of over-seizure is unavoidable when dealing with ESI, the Ninth Circuit directs the district courts to balance law enforcement interests with the rights of individuals:

We accept the reality that such over-seizing is an inherent part of the electronic search process ' . This calls for greater vigilance on the part of judicial officers in striking the right balance between the government's interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.

To assist district and magistrate judges in this balancing, the decision establishes the following procedures for cases in which the government seeks a search warrant or subpoena for ESI:

• Magistrate judges should insist that the government waive reliance upon the plain view doctrine as a condition of the warrant ' a search warrant listing particular ESI is not a blanket license to search every directory in a company's file system simply because interesting information might be found there.
• The government's search protocol must be designed to uncover only the information it has shown probable cause to seek, and only that information may be examined by case agents.
• To this end, segregation and redaction of data must be performed, either by specialized governmental personnel not otherwise involved in the investigation or by an independent third party. There is a presumption in favor of an independent third party in cases where the subpoena recipient and others whose privacy interests may be threatened are not suspected of any crime.
• The government must destroy or return the non-responsive information ' including the original physical media seized ' and provide the issuing magistrate judge with a sworn certification that it has done so. This requirement by the Ninth Circuit appears to be in tension with the amended text of Rule 41 discussed below, which permits investigating officers to retain a copy of seized or copied ESI.
• The theoretical risk of information loss does not support an immediate warrant. A request for a warrant or subpoena on an urgent basis must disclose an actual risk of destruction of information as well as the government's prior efforts to seize the same information in other courts before a court in the Ninth Circuit will permit emergency wholesale seizure. A “lack of candor” in this area will, the Ninth Circuit warned, “bear heavily against the government” in any follow-on proceedings.

ESI Amendments to Rule 41

This detailed guidance from the Ninth Circuit comes just as ESI-related amendments to Rule 41 (governing search and seizure) are set to come into effect. The amendments, effective Dec. 1, 2009, specifically contemplate the government's seizure, copying, and later review of ESI and storage media. A new Rule 41(e)(2)(B) provides: “Unless otherwise specified, the warrant [for ESI] authorizes a later review of the media or information consistent with the warrant,” and an addition to Rule 41(f)(1)(B) specifies that the investigating officer “may retain a copy of the electronically stored information that was seized or copied.” As noted by the Advisory Committee, the rule amendment “acknowledges the need for a two-step process: officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.”

Although the spirit of this amendment ' effectively acknowledging the necessity for government “over-seizure” in the ESI context ' may appear to be in tension with the stringent safeguards established by Comprehensive Drug Testing, there is no reason to expect the new Rule to trump the Ninth Circuit's ruling regarding the requirements of the Fourth Amendment. Indeed, the Advisory Committee Notes suggest that the amendment is not intended to address the constitutional standards applicable to the search and seizure of ESI, and that such questions are left to the developing case law.

Conclusion

It remains to be seen whether the Comprehensive Drug Testing decision will survive. It has been criticized by some as an example of judicial overreaching that is unlikely to endure. In an unusual development, the Ninth Circuit on Nov. 4 issued an order inviting the parties to submit briefs addressing whether the decision of the 11-member en banc panel should be reconsidered by all of the court's 27 active judges. At least for now, the decision is binding in the Ninth Circuit and will likely force government agents to revisit their practice of indiscriminately sweeping up countless megabytes from businesses for later sifting by the investigating agents. If it survives, Comprehensive Drug Testing will strengthen the ability of businesses to challenge the breadth of government data sweeps and will play a prominent role in informing courts' application of the new ESI amendments to Rule 41.

David Krakoff ([email protected]) and Anthony Alexis ([email protected]), both former federal prosecutors, are partners of Mayer Brown LLP in its Washington office. Joseph Baker ([email protected]), an associate, is a a member of the firm's Electronic Discovery and Records Management Group. They wish to thank their colleague Clancy Galgay, who assisted in drafting the article.

The long-running BALCO steroid investigation that led to the indictment of Major League Baseball star Barry Bonds has resulted in a potentially landmark decision about how government agents apply for and execute search warrants for electronically stored information (ESI). In United States v. Comprehensive Drug Testing, Inc. , 579 F.3d 989 (9th Cir. Aug. 26, 2009), an 11-member “en banc panel” of the Ninth Circuit affirmed a district court ruling ordering the government to return an overbroad set of electronic data seized under a search warrant. This decision may force the Department of Justice (DOJ) to adjust its procedures for ESI search warrants ' a common tool for gathering evidence ' in the midst of the government's recent efforts to step up enforcement of federal laws.

The 'Plain View' Doctrine

While some courts have previously required ESI search protocols to limit the scope of electronic data the government may seize and the manner in which it may review the seized information, most courts have not imposed rigid limits. Instead, they have generally permitted the government to gather broad quantities of data for later analysis with no meaningful court supervision or mechanism for the impacted business to monitor or narrow the scope of data reviewed by the government. Such a permissive approach exposes businesses and individuals whose ESI is seized to the risk that the government, under the “plain view” doctrine, will gain access to data entirely unrelated to the search warrant.

The Comprehensive Drug Testing decision addresses this risk and reins in the routine practice of “grab everything now, look at it later.” In the decision, the Ninth Circuit not only asserts its judicial authority to supervise the execution of search warrants, but also provides protocols that courts in the Circuit should follow in granting search warrants for ESI and in regulating ESI searches once a warrant has been executed.

The decision comes three months prior to the effective date of amendments to Federal Rule of Criminal Procedure 41 that specifically address search warrants for ESI. The amended Rule provides guidelines for the handling of ESI search warrants that are less detailed and stringent than the protocols established in Comprehensive Drug Testing. Since the Ninth Circuit decision is grounded in the Fourth Amendment, its requirements ' if not otherwise overruled ' should survive the amendment of Rule 41, and may guide the application of the amended Rule in other jurisdictions.

Case Background

In 2002, Major League Baseball (MLB) and the MLB Players' Association (MLBPA) entered into a collective bargaining agreement that appointed Comprehensive Drug Testing, Inc. (CDT) to administer a suspicionless steroid testing program for the MLBPA. Players were assured that test results would remain anonymous and confidential. Federal agents investigating Bay Area Lab Cooperative (BALCO), which they suspected of providing steroids to MLB players, learned that 10 players had tested positive for steroid use through the CDT program. They secured a grand jury subpoena in the Northern District of California that sought all MLB “drug testing records and specimens” in CDT's possession.

CDT and the MLBPA moved to quash the subpoena after efforts to negotiate a compliance agreement failed. The day the motion to quash was filed, the government obtained a search warrant in the Central District of California authorizing a search of CDT's facilities for electronic records related to the 10 players. The government, however, seized and promptly reviewed the drug testing records of hundreds of MLB players and others. The government also obtained a search warrant in the District of Nevada for the records maintained by Quest Diagnostics, which had performed the actual scientific testing and possessed the physical samples.

CDT and the MLBPA moved for the return of the property seized by the government during the execution of the search warrants on the grounds that the government had failed to comply with search procedures specified in the warrant. The motion was granted in the district court and affirmed by the Ninth Circuit en banc.

En Banc Decision

The Ninth Circuit's en banc opinion not only reverses its trend of leaving the particular details of the search of electronic records largely to the government and its agents, but also provides guidance on the protocols for granting a search warrant for ESI and for supervising the subsequent ESI review. While acknowledging that some degree of over-seizure is unavoidable when dealing with ESI, the Ninth Circuit directs the district courts to balance law enforcement interests with the rights of individuals:

We accept the reality that such over-seizing is an inherent part of the electronic search process ' . This calls for greater vigilance on the part of judicial officers in striking the right balance between the government's interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.

To assist district and magistrate judges in this balancing, the decision establishes the following procedures for cases in which the government seeks a search warrant or subpoena for ESI:

• Magistrate judges should insist that the government waive reliance upon the plain view doctrine as a condition of the warrant ' a search warrant listing particular ESI is not a blanket license to search every directory in a company's file system simply because interesting information might be found there.
• The government's search protocol must be designed to uncover only the information it has shown probable cause to seek, and only that information may be examined by case agents.
• To this end, segregation and redaction of data must be performed, either by specialized governmental personnel not otherwise involved in the investigation or by an independent third party. There is a presumption in favor of an independent third party in cases where the subpoena recipient and others whose privacy interests may be threatened are not suspected of any crime.
• The government must destroy or return the non-responsive information ' including the original physical media seized ' and provide the issuing magistrate judge with a sworn certification that it has done so. This requirement by the Ninth Circuit appears to be in tension with the amended text of Rule 41 discussed below, which permits investigating officers to retain a copy of seized or copied ESI.
• The theoretical risk of information loss does not support an immediate warrant. A request for a warrant or subpoena on an urgent basis must disclose an actual risk of destruction of information as well as the government's prior efforts to seize the same information in other courts before a court in the Ninth Circuit will permit emergency wholesale seizure. A “lack of candor” in this area will, the Ninth Circuit warned, “bear heavily against the government” in any follow-on proceedings.

ESI Amendments to Rule 41

This detailed guidance from the Ninth Circuit comes just as ESI-related amendments to Rule 41 (governing search and seizure) are set to come into effect. The amendments, effective Dec. 1, 2009, specifically contemplate the government's seizure, copying, and later review of ESI and storage media. A new Rule 41(e)(2)(B) provides: “Unless otherwise specified, the warrant [for ESI] authorizes a later review of the media or information consistent with the warrant,” and an addition to Rule 41(f)(1)(B) specifies that the investigating officer “may retain a copy of the electronically stored information that was seized or copied.” As noted by the Advisory Committee, the rule amendment “acknowledges the need for a two-step process: officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.”

Although the spirit of this amendment ' effectively acknowledging the necessity for government “over-seizure” in the ESI context ' may appear to be in tension with the stringent safeguards established by Comprehensive Drug Testing, there is no reason to expect the new Rule to trump the Ninth Circuit's ruling regarding the requirements of the Fourth Amendment. Indeed, the Advisory Committee Notes suggest that the amendment is not intended to address the constitutional standards applicable to the search and seizure of ESI, and that such questions are left to the developing case law.

Conclusion

It remains to be seen whether the Comprehensive Drug Testing decision will survive. It has been criticized by some as an example of judicial overreaching that is unlikely to endure. In an unusual development, the Ninth Circuit on Nov. 4 issued an order inviting the parties to submit briefs addressing whether the decision of the 11-member en banc panel should be reconsidered by all of the court's 27 active judges. At least for now, the decision is binding in the Ninth Circuit and will likely force government agents to revisit their practice of indiscriminately sweeping up countless megabytes from businesses for later sifting by the investigating agents. If it survives, Comprehensive Drug Testing will strengthen the ability of businesses to challenge the breadth of government data sweeps and will play a prominent role in informing courts' application of the new ESI amendments to Rule 41.

David Krakoff ([email protected]) and Anthony Alexis ([email protected]), both former federal prosecutors, are partners of Mayer Brown LLP in its Washington office. Joseph Baker ([email protected]), an associate, is a a member of the firm's Electronic Discovery and Records Management Group. They wish to thank their colleague Clancy Galgay, who assisted in drafting the article.