CA6: Motion to compel discovery of software used to search computer on P2P network properly denied

In a child pornography case, the district court properly denied discovery of “law enforcement tools … [used] to assess information in connection with the particular GUID … associated with Mr. Pirosko’s computer equipment” to show how they found it and entered it when on a peer-to-peer network. All defendant had was a letter from an expert that mentioned that there was no indication that the government didn’t manipulate the data. This was also insufficient to even attempt to form the basis of a Franks challenge since it was all speculative. United States v. Pirosko, 2015 U.S. App. LEXIS 8364 (6th Cir. May 21, 2015):

To summarize, in deciding to deny Pirosko’s motion to compel, the district court had before it the First Circuit’s decision in United States v. Chiaradio, 684 F.3d 265, 278 (1st Cir. 2012), where the defendant did not provide any evidence of government error, and the Ninth Circuit’s decision in Budziak, where the defendant did provide evidence of error. Here, the strongest evidence of error was a single sentence in a letter by Interhack, a firm hired by Pirosko, which stated that “[t]he [government’s] affidavit does not show which tools, which records, or the means by which those records were created, leaving otherwise answerable questions unanswered.” R. 26-1 (Exh. in Mot. to Compel Disc. at 4) (Page ID #181). That lone allegation is simply not enough to overcome the numerous facts supporting the government’s position that it legitimately obtained child pornography from Pirosko’s shared folders.

To be clear, this conclusion should not be read as giving the government a blank check to operate its file-sharing detection software sans scrutiny. As a general matter, it is important that the government’s investigative methods be reliable, both for individual defendants like Pirosko and for the public at large. Still, we think that it is important for the defendant to produce some evidence of government wrongdoing. We have held as much in cases involving more traditional police investigation techniques. See, e.g., United States v. Boxley, 373 F.3d 759, 761 (6th Cir. 2004) (stating that, with respect to dog sniffs, “it is not necessary for the government to show that the dog is accurate one hundred percent of the time, because a very low percentage of false positives is not necessarily fatal to a finding that a drug detection dog is properly trained and certified”) (internal quotation marks omitted).Pirosko has failed to produce any such evidence here, even after receiving the government’s computer logs, which included information on when law enforcement officials were able to connect to his computer and what files they were able to download from his shared folder. Pirosko has, moreover, conceded that he did not turn off his upload settings—he simply argues that his settings allowed for a low rate of downloading, a point that we discuss in greater detail below. It would not have been difficult for Pirosko, armed with this information, to establish some evidence of government wrongdoing, had any such wrongdoing actually occurred: he knew the size of the files being downloaded, the approximate download speed, and the time when the government allegedly downloaded these files. What remains is a simple exercise in arithmetic. Pirosko has either failed to do this exercise or, having done it, has realized that the math simply does not add up. In any event, he has failed to demonstrate that the district court abused its discretion in denying his motion to compel discovery.