Author Archives: aliciapenn

Legal Bytes: US v. Brown, D.C. Cir. 2025 — Compelled Unlock of Phone Violates 5th Amendment

Posted on by

By Alicia Penn

TL:DR[1]: The U.S. Court of Appeals for the D.C. Circuit recently[2] considered the issue of whether making someone unlock their cellphone violates the Fifth Amendment. Their answer is yes.

Case Facts and Procedural History:

Peter Schwartz was indicted for assaulting officers at the Capitol on January 6, 2021. When he was arrested, an agent found a cellphone in his bedroom dresser. The agent asked Schwartz for the password, and Schwartz gave him 3 different ones; however, none of them worked. At some point Schwartz unlocked the phone using his thumbprint.

Continue reading →

eDiscovery Review platforms (Eclipse, Casepoint, Everlaw): What are they, and why should I consider using one?

Posted on by

By Alicia Penn, Luzevelia Morales and Tisha Davis

When the government produces discovery to defense teams, it is not always in a user-friendly way. Sometimes the problem is volume—there are so many separate files that it would take decades to lay eyes on all of them. The problem could be organization (or, rather, the apparent lack of it)—the folder structure is cumbersome and/or illogical. Naming convention can be a non-starter—there is an index, but the filenames give you no clue about the file contents.

One answer is to use a review platform. A review platform is software that allows you to view a variety of document types in a single place without having to go through nested folders. Other review platform functions include the ability to tag documents, run text-based searches, create notes, and organize documents. Review platforms are particularly helpful in email-heavy cases because they show the path of an email and any attachments. They also can facilitate collaboration.

Continue reading →

Social Media Subpoenas

Posted on by

By Alicia Penn

If you subpoena a company like Meta or Snap, Inc. for records, what will you get? The answer depends on what you ask for, where you ask for it, and what you argue.

The current landscape of social media subpoenas looks like this: if you ask for records of messages sent to your client, you should get them. 18 U.S.C. § 2702(b)(1)(2018); see also Facebook, Inc. v. Pepe, 241 A. 3d 248 (D.C. 2020). If you ask for subscriber information (i.e. things that are not considered contents of communications), you should get it. 18 U.S.C. § 2702(a)(1)(2018).

But what if you need a message that was not addressed to your client? Or photographs that were posted on someone else’s page? Here we run into the Stored Communications Act (“SCA”), enacted by Congress in 1986. 18 U.S.C. §§ 2701-2712(2018). Some courts have construed the SCA to allow major technology companies to refuse to comply with criminal defense subpoenas.[1]

Continue reading →

Hardware Recommendation Update 2024

Posted on by

By Alicia Penn and Carl Adams

As discovery productions get larger and larger, it helps to have equipment with sufficient processing power to handle them. In some cases, offices found once they had upgraded their hardware, problems with processing times and capabilities were resolved. If you would like to purchase a new machine but are stuck on what to buy, this post is for you.

Continue reading →

Admissibility of Text Messages

Posted on by

[Editor’s Note: Alicia Penn joined the NLST in September of 2023 from the District of South Carolina Federal Defender Office, where she represented clients charged with offenses involving everything from turtles to terrorism. A career Public Defender, she was forced to become proficient in electronically stored information after being assigned a 3-terabyte lottery scam case in 2013. Ever since, she has worked to adapt to the ever-changing electronic landscape and make it work in favor of her clients. In her new role her goal is to provide practical solutions to technological problems.]

Are screenshots of text messages admissible? The answer is everyone’s favorite: it depends!

There is no federal rule expressly forbidding the use of screenshots of text messages in court, but not all relevant evidence is admissible. To get a screenshot admitted and considered by a judge or jury there are procedural hurdles to overcome. Conversely, if your goal is to keep a screenshot out, the federal rules give you a framework to argue against admission.

Continue reading →