Perkins Coie on New 9th Cir. Guidelines on Electronically Stored Information

by David F. Taylor, Lee Stein, Albert Gidari, and Patrick M. Collins

In this Emerging Issues commentary, Perkins Coie attorneys examine a decision of the Ninth Circuit Court of Appeals in US v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9^th Cir. 2009), which involves a federal investigation into the use of steroids by professional baseball players. In this decision, the court announced new enhanced guidelines that apply to electronically stored information (ESI). The expert attorneys provide advice to companies to protect ESI in a government search.

The authors write:

Refusing to disturb findings that the government had engaged in wholesale violations of the warrant, the Court held that those violations required returning the seized property. Calling the government's arguments 'too clever by half,' the Court refused to apply the 'plain view' doctrine to justify the government's review and use of the non-responsive data on the ground that doing so would eviscerate the Fourth Amendment.

What makes the decision interesting are the ground rules the Court establishes for warrants regarding ESI. The Court recognized that such rules must balance two competing considerations. On the one hand, practical realities make traditional on-site searches of ESI impractical ... On the other hand, the Court also recognized that over-seizing creates a serious risk that every warrant for electronic data will become a general warrant, allowing investigators to romp freely through all of the seized data regardless of whether they have probable cause to do so.

This decision clarifies and enhances the requirements for government searches of ESI and gives those requirements some teeth at least in the Ninth Circuit. While some privacy advocates may complain about the Court's acceptance of over-seizing as an inherent aspect of searches for ESI, the decision at least adopts clear and enforceable procedures to prevent many of the worst government abuses.

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