Government e-Discovery Tactics Broadened

A federal appeals court reversed a landmark data-privacy ruling it issued last year, which had restored broad powers for computer search and seizure by government agents.

In a highly unusual move, the California-based 9th Circuit Court of Appeals retreated from a series of protocols and restrictions it issued last year in U.S. v. Comprehensive Drug-Testing because the Obama Administration asked the court to reconsider. The original decision spelled out tight controls on what methods government agents could use to review and retain electronic information seized during a criminal investigation; the government claimed those rules had brought investigations to a standstill.

The case is an offshoot of the federal government’s criminal case against the Bay Area Laboratory Co-Operative, more notoriously known as BALCO—a case that started as a probe of steroid abuse among professional baseball players and has since spawned all manner of secondary legal headaches.

In 2002, government agents in the BALCO probe executed a search warrant for the records of 10 baseball players. Comprehensive Drug Testing is an independent company used by Major League Baseball to administer drug testing on its athletes and retain the records. In the course of executing the warrant, agents also obtained confidential medical records of hundreds of other players, and used that data to get more search warrants. Government lawyers argued that they should be allowed to retain and use information not included in their original search warrant because it came into “plain view.”

The 9th Circuit ruled against that theory in August 2009. To drive home its point, it stated five criteria that investigators’ searches had to meet, including segregation of data (ideally done by a third party), destruction of irrelevant data, and several other points governing how a federal magistrate should oversee the search.

Following the decision, however, the Obama Administration—led by then-solicitor general, now Supreme Court justice Elena Kagan—urged the court to rehear and reverse its decision, arguing that the guidelines had grounded criminal investigations to a “complete halt,” and have “delayed or impeded” investigations all over the West Coast. Kagan noted the unprecedented nature of such a request (the 9th Circuit has never granted reconsideration before, and the executive branch has never asked for one), but stressed that, “the broad issues unnecessarily addressed in the [court’s] opinion are of surpassing importance and compel that extraordinary action.”

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Source: complianceweek.com
By: Jaclyn Jaeger