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W. Lawrence Wescott II: Failure to review ESI in a reasonable time leads to suppression of evidence

How long can the government hold on to electronically stored information evidence without beginning any kind of review? U.S. v. Metter, No. 10-CR-600 (DLI), 2011 U.S. Dist. LEXIS 155130 (E.D.N.Y. May 17, 2012) is apparently the first case to provide an answer to this question.

In this securities fraud action, the government had asserted that the defendant Metter had furthered the fraudulent scheme using his home computers. A magistrate judge authorized a search warrant on Nov. 1, 2010, and seized four hard drives, among other items, from Metter’s home. The government also seized 61 hard drives, pursuant to a valid warrant, from two companies, and also obtained email from the Internet service providers of Metter and other co-defendants. The government made images of the hard drives and promptly returned them to their respective owners.

The government issued a series of status reports to the court, but, 15 months after the seizure, the government had still not conducted its review of the seized evidence to determine whether any information was outside the scope of the warrant and had not determined when its privilege review would be complete.

Metter filed a motion to suppress the evidence, stating that the government’s significant delay violated the Fourth Amendment. The government argued that seizure and off-site review of evidence was permissible under the Fourth Amendment, defendants had not suffered harm because the government had immediately returned the evidence and the delayed review was reasonable.

The court found that the reasonableness of the delay between seizure and review of electronic evidence required a case-by-case factual analysis but that under the facts of this case, the government’s seizure was unreasonable.

The court first observed that, as an image of an electronic document contained the same information as the original documents, the retention of images by the government raised the same privacy concerns as retention of the original documents. Documents, both paper and electronic, raised different concerns from other types of evidence, because of the volume of information. Thus, courts permitted the government to examine documents that could be outside the scope of the warrant to determine whether they fell within the scope of the warrant. Similarly, the nature of electronic evidence raised its own set of issues – the number of documents on computer drives could be greater by orders of magnitude than paper documents and the owner could potentially password protect and/or encrypt the files. Thus, courts tended to give the government more leeway in searching for relevant electronic evidence, including the ability to search the evidence offsite.

The court acknowledged that the warrants obtained by the government and the imaging process itself were reasonable. The problem was the government’s delay in beginning review of the evidence. As of the date of the hearing, 15 months after the seizure, the government had no plan to begin review of the evidence.

The court acknowledged that there was “no established upper limit” as to when the government must review seized electronic data to determine whether it was within the scope of the warrant. However, the court noted that in U.S. v. Mutschelknaus, 564 F. Supp. 2d 1072, 1076 (D. N.D. 2008), a search of a computer’s contents must be made within a reasonable time after the seizure. The Mutschelknaus court observed that searches made seven months after the seizure was not unconstitutional, while a 10-month delay for the completion of the government’s review was held permissible in U.S. v. Burns, 2008 U.S. Dist. LEXIS 35312, 2008 WL 4542990, *5 (N.D. Ill. Apr. 29, 2008).

The Metter court found fault with the government’s failure to initiate any strategy for review of the data 15 months after the seizure, stating that “[t]he government’s blatant disregard for its responsibility in this case is unacceptable and unreasonable.” The fact that the government had returned the original data to the defendants while retaining the images of the data was not relevant. “The government’s retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.”

The court then considered the appropriate remedy. Suppression of evidence was warranted when the government effects a “widespread seizure” of items outside the warrant’s scope and it acts in bad faith. The first prong of the test was met by the government’s seizure of all information contained on the drives and the email accounts. The government’s bad faith was demonstrated by its promises to review the evidence and its failure to do so after requests by both defense counsel and the court. Metter’s motion to suppress the electronic evidence was granted.

W. Lawrence Wescott II, Esq., a former IT manager and database development manager, is an e-discovery consultant. He is currently chair of the Technology Committee of the Maryland State Bar Association’s Litigation Section. He can be reached at [email protected]