Category Archives: Collect

Discovery Diagnostic: When You Should Ask the Government to Produce Discovery in its Original Format

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By Alicia Penn and Sean Broderick

Members of our team have noticed an uptick in the U.S. Attorneys’ offices use of eDiscovery review platforms such as Everlaw, Relativity, and Ipro Eclipse to produce discovery to defense teams.

If these types of productions do not cause you problems and you can open, search, and review discovery when provided in this way, you can stop here and skip the rest of this post.

However, if you open your discovery and find the text for an email in one spot, the metadata for the email in another spot, and the images associated with the email somewhere else with no way to realistically put them back together, read on, my friend, we are in this together.

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Social Media Subpoenas

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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]

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Admissibility of Text Messages

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[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.

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Traveling Through Time in the Wayback Machine (without Mr. Peabody)

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The Internet is a dynamic place. While that is a benefit when we want new information quickly, it is a challenge in the legal field when we need a reliable, stable platform on which to build our arguments or conduct research. This backdrop is where the Wayback Machine comes in. The Wayback Machine is a service provided by the Internet Archive, a non-profit digital library dedicated to the preservation of our digital culture, which contains more than 26 years of archived web pages available for our viewing. This resource can serve our profession in two ways: first, as a tool for researching information that has disappeared from the public-facing internet; and second, as a tool for providing a stable link for use in briefs and motions. There are for-profit entities out there that will charge you for a similar service, however the Internet Archive is free, and has a proven track record of stability.

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Google Data and Geofence Warrant Process

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[Editor’s Note: John C. Ellis, Jr. is a National Coordinating Discovery Attorney for the Administrative Office of the U.S. Courts, Defender Services Office. In this capacity, he provides litigation support and e-discovery assistance on complex criminal cases to defense teams around the country. Before entering private practice, Mr. Ellis spent 13 years as a trial attorney and supervisory attorney with Federal Defenders of San Diego, Inc. He also serves as a digital forensic consultant and expert.]

Introduction

This is an updated version of a post originally published in December 2020, which provides a primer on how Google collects location data, the three-step warrant process used by law enforcement to obtain these records, and an example of how the data is collected and used by the prosecution. The updated version includes references to United States v. Chatrie, a recently decided district court opinion regarding the constitutionality of geofence warrants.[i] From the opinion and the pleadings in Chatrie, we have a better understanding of the Google collection and geolocation search warrant process.

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