David F. Taylor, Lee Stein, Albert Gidari, and Patrick M. Collins
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 (9th 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:
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.
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.
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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