S.D.N.Y.: Failure to follow a document search protocol in otherwise reasonably conducted computer and device searches wasn’t unreasonable under 4A

The court conducts a second hearing over whether blanket suppression is required for over searching numerous electronic devices seized from the defendant, some of which were later turned over by defense counsel. Defendant sought to bring his case within “United States v. Debbi, which found a Fourth Amendment violation where the Government blatantly seized large volumes of physical records outside the scope of a search warrant, made no effort to separate evidence of crimes from everything else, and refused to return the bulk of the nonresponsive materials notwithstanding repeated requests by Debbi and the encouragement of this Court. See 244 F. Supp. 2d 235, 237-38 (S.D.N.Y. 2003).[*]” The cases are not comparable, and the motion is denied. The failure to follow a document search protocol didn’t make the search otherwise unreasonable. United States v. Lumiere, 2016 U.S. Dist. LEXIS 177702 (S.D.N.Y. Nov. 28, 2016) (Rakoff, J.):
[* Also by Judge Rakoff.]

As the foregoing sketch suggests, this case is a far cry from Debbi. Nonetheless, Lumiere argued here that the Government violated the Fourth Amendment because even though Agent Callahan conceded that the seized devices contained documents outside the scope of the warrant, he did not follow a formal document review “protocol,” did not mark documents “responsive” and “not responsive,” and did not otherwise memorialize his findings. See Transcript dated Oct. 19, 2016, at 17-21. That left his non-responsive personal data readily accessible to any member of the investigating team, which, defendant argued, is as much a Fourth Amendment violation in the digital setting as it was in the physical setting in Debbi.

There were several difficulties with defendant’s argument, but the Court will focus in this Memorandum on just a few of them. To start with, the Second Circuit recently considered the exact analogy Lumiere relied on – paper files to digital files – and found it wanting. See United States v. Ganias, 824 F.3d 199, 211-21 (2d Cir. 2016) (en banc). Indeed, Ganias acknowledges that meaningful digital segregation may well be impossible. “Though to a user a hard drive may seem like a file cabinet, a digital forensics expert reasonably perceives the hard drive simply as a coherent physical storage medium for digital data – data that is interspersed throughout the medium, which itself must be maintained and accessed with care, lest this data be altered or destroyed.” Id. at 212 (emphasis in original). This “interspersion … may affect the degree to which it is feasible, in a case involving search pursuant to a warrant, to fully extract and segregate responsive data from non-responsive data.” Id. at 213. Ganias further suggests, as remedies to privacy concerns like Lumiere’s, that defendants can seek the return of seized devices pursuant to Fed. R. Crim. P. 41(g) or can stipulate to certain facts. See id. at 218-19. Lumiere pursued neither course of action. True, this discussion is dicta, but it is instructive nonetheless, and Lumiere’s failure to explain why segregating responsive data was even feasible, much less mandatory, is telling.

Lumiere also appeared to fault the Government for not systematically memorializing the results of its review of the evidence. The Court rejected this attempt to constitutionalize document review procedures. “[I]t is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search warrant — subject, of course, to the general Fourth Amendment protection against unreasonable searches and seizures.” See United States v. Salameh, 54 F. Supp. 2d 236, 277 (S.D.N.Y. 1999). Just how the Government retrieves relevant documents for later use, if it does not memorialize its results, was not explored in detail at the evidentiary hearing. However, Agent Callahan testified that he relied on remembering the locations of particular records, and he noted that agents can instruct forensic examiners to retrieve records they want to review in further detail. See Transcript dated Oct. 19, 2016, at 18. Although arguably a bit perfunctory, those methods did not strike the Court as constitutionally unreasonable.

Unlike in Debbi, moreover, all available evidence showed that the Government executed the warrant in good faith. “[T]he drastic remedy of the suppression of all evidence seized is not justified unless those executing the warrant acted ‘in flagrant disregard’ of the warrant’s terms.” United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) (emphasis in original) (quoting United States v. Medlin, 798 F.2d 407, 411 (10th Cir. 1986)). “Government agents flagrantly disregard the terms of a warrant so that wholesale suppression is required only when (1) they effect a widespread seizure of items that were not within the scope of the warrant and (2) do not act in good faith.” United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000) (citation and internal quotation marks omitted).

Far from flagrantly disregarding the search warrant, the Government carefully abided by it. The warrant (which Lumiere has never challenged) did not, by its own terms, require the Government to use a search protocol or segregate documents.8 It merely required agents to review the seized devices for responsive evidence, which had only to be “identified.” See Search Warrant ¶¶ 11-12. That is exactly what Agent Callahan did. See Transcript dated Oct. 19, 2016, at 7, 19 (testifying, inter alia, that Callahan “reviewed the computers and … looked at files to determine whether the files were responsive to the search warrant” and “made determinations as to what was responsive and what wasn’t”). The warrant also expressly authorized Callahan’s methods. Compare Search Warrant ¶ 12 (authorizing agents to “survey[] various file directories or folders and the individual files they contain” and “conduct[] a file-by-file review by ‘opening’ or reading the first few ‘pages’ of such files”) with Transcript dated Oct. 19, 2016, at 7 (testifying that Callahan “manually [went] through file folders, looking for documents and other recordings in evidence” and “went through individual file folders one by one”).

8. Lumiere divined a duty to segregate files in the warrant’s instructions to “review the seized [Electronically Stored the data is responsive to the warrant.” See Search Warrant ¶¶ 11-12. The Court was not persuaded. Those are but general instructions to review the seized devices for evidence of the alleged crimes. Nothing in those instructions requires the Government to separate responsive and non-responsive documents, or mark each document, or otherwise record any individual document’s import or relevance.

More broadly, the Government acted in good faith throughout these proceedings. For example, the Government promptly returned seized devices that Lumiere requested without burdening defendant or the Court with motion practice under Fed. R. Crim. P. 41(g). See, e.g., Transcript dated Oct. 19, 2016, at 5, 14-15. Even the saga of the Apple iPad suggests good faith. The Government candidly conceded at the evidentiary hearing that to search it at this late date would require a new search warrant, see id. at 39-40, and chose instead to destroy its digital copies and to promptly make the device available to Lumiere. See Govt. Post-Hearing Letter at 1. This behavior stands in marked contrast to Debbi, where the Government overseized copious amounts of physical records, thereby depriving defendant of their use, and refused multiple requests by Debbi and this Court’s direction to return items beyond the scope of the warrant. See 244 F. Supp. 2d at 237-38.

Third, Lumiere sought blanket suppression because the Government adopted no precautions against viewing privileged documents in its search of Lumiere’s devices, despite being on notice of attorney-client communications. Unlike the previous arguments, Lumiere sought suppression on these grounds of evidence obtained from both the seized and voluntarily produced devices. Lumiere cited no authorities in support of this argument, however, though the remedy he sought suggested that he had the Fourth Amendment in mind. The Court likewise found no instances in which a court ordered blanket suppression because care was not taken to avoid reviewing privileged documents. Indeed, “[t]he general remedy for violation of the attorney-client privilege is to suppress introduction of the privileged information at trial,” see United States v. SDI Future Health, Inc., 464 F. Supp. 2d 1027, 1047 (D. Nev. 2006), not to order wholesale suppression. Lacking more direct authority, the Court evaluated Lumiere’s novel argument under the “general touchstone of reasonableness which governs Fourth Amendment analysis,” see United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998), and found the Government’s review reasonable.

Defendant’s argument was all but frivolous when applied to the voluntarily produced devices. When Lumiere consented to a search, he agreed not to seek suppression, save only for individual documents subject to the attorney-client privilege. See Consent to Search at 2 (acknowledging that Lumiere’s consent to search was made “with the understanding and agreement that he shall assert no claim under the United States Constitution, any statute, Rule 410 of the Federal Rules of Evidence, or any other federal rule, that any information contained in the Subject Property, or any leads therefrom, should be suppressed, except to the extent that the Subject Property contains information subject to the protections of the attorney-client privilege”). Lumiere did not argue that his consent was involuntary or otherwise defective. Accordingly, the Government’s search of the produced devices was reasonable, so blanket suppression was denied.

Lumiere’s argument as to the seized devices had more to recommend it, but it ultimately fared no better. As a preliminary matter, one obvious predicate to this argument was the existence of documents subject to the attorney-client privilege. As noted above, Lumiere submitted several documents for the Court’s in camera review, and the Court agreed that many of them are arguably privileged. Defendant submitted, for example, audio recordings of discussions he had with individuals purporting to be attorneys in which they discussed legal issues relevant to this case, as well as emails of a similar nature. However, Lumiere could not state with any confidence that these documents were found on the seized devices, and admitted that some of them were likely found on the voluntarily produced devices. See Def. Privilege Letter at 2. The Court nonetheless assumed for the sake of argument that the seized devices contained some arguably privileged materials.

Even so, the Government’s review was reasonable. It is true that Agent Callahan employed no special procedures to avoid viewing potentially privileged documents. See Transcript dated Oct. 19, 2016, at 30. However, at the time he reviewed the seized devices, Agent Callahan was only aware of one attorney representing defendant, Jeffrey Udell, see id., and so was not in a position to do more than keep an eye out for Udell’s name. More generally, the Government completed its review of the seized devices before being alerted to the fact that they might contain significant numbers of privileged documents. In particular, although Lumiere placed great weight on Udell’s April 3, 2014 email informing the Government that Lumiere’s devices might contain privileged communications with some 80 lawyers, by that point Agent Callahan had already completed reviewing the seized devices. See April 3, 2014 email at 2-4; Transcript dated Oct. 19, 2016, at 6-9. Nor has Agent Callahan revisited the electronic evidence since that time. See Transcript dated Oct. 19, 2016, at 9. This after-the-fact notice of potentially privileged documents did not render the Government’s earlier search unreasonable.

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