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In this Emerging Issues Analysis, David F. Taylor, Lee Stein, Albert Gidari
Jr., Patrick M. Collins, Pravin B. Rao and Joel R. Levin of Perkins Coie LLP
examine a decision of the Ninth Circuit U.S. Court of Appeals in U.S. v.
Comprehensive Drug Testing Inc., 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 attorneys provide advice to companies to protect ESI in a
government search. They 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
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