Evidence

Last week, in an unpublished opinion, the Ninth Circuit vacated an Idaho district court's denial of a motion to compel production of the identities of four anonymous online speakers.  In SI03, Inc. v. Bodybuilding.com, the Ninth Circuit found that the district court should not have applied the rigorous standards of Doe v. Cahill and Dendrite where the nature of the speech--as core, protected speech or as less-protected, commercial speech--was unclear.  Rather, the district court should have conducted its own inquiry into the speakers' identities to "determine the nature of the speech at issue before settling on a standard for disclosure."

Perkins Coie Partner Albert Gidari was a panelist at the Brookings Institution's presentation May 17 on "Reforming the Electronic Communications Privacy Act."

The U.S. District Court for the Western District of Washington granted Amazon.com's request for  declaratory judgment that the North Carolina Department of Revenue’s (the Department) information requests for the production of customer purchase records violated the First Amendment and the Video Privacy Protection Act.

Perkins Coie Partner Albert Gidari, a recognized authority on privacy and electronic surveillance issues, was quoted Monday on page one of The New York Times on efforts to revamp federal laws regarding wiretapping by law enforcement and terrorism authorities.

Perkins Coie Partner Albert Gidari was quoted Thursday morning in a story on NPR's "Morning Edition" about this week's appeals court ruling regarding warrant requirements for cell phone records. The decision from the U.S. Court of Appeals for the Third Circuit stated judges have the right to require warrants before law enforcement officials can obtain records that may show a cell phone customer's location.

Perkins Coie Partner Albert Gidari was quoted in an Associated Press article this week on a proposed change to federal law that would allow the FBI to obtain electronic records from Internet service providers - without a court order.

The Article 29 Working Party adopted its "Working Document 1/2009 on pre-trial discovery for cross border civil litigation" on February 11, 2009.  The document is the first attempt by the Working Party to address the numerous issues associated with conducting discovery between EU and non-EU countries.

The Federal Judicial Center recently published a Pocket Guide for Judges on "Managing Discovery of Electronic Information." This 22 page booklet is written for federal judges and contains sections on: Describing Electronically Stored Information ("ESI"), Early Consideration of ESI – Rules 26(f) and 16, ESI and Initial Disclosures, Allocation of Costs, Discovery from Nonparties, Form of Production, Waiver of Privilege or Work-Product Protection, Preservation of ESI, and Spoliation and Sanctions.

In an order issued on September 18, 2007, United States Magistrate Judge Joan M. Azrack held that PCTDD may not be obtained with a pen register order. In the Matter of Application of the United States of America for Orders (1) Authorizing the Use of Pen Registers and Trap and Trace Devices and (2) Authorizing Release of Subscriber Information, 515 F. Supp. 2d 325 (E.D.N.Y. 2007). In so holding, Judge Azrack concurred with prior decisions from district courts in Texas and Florida. Id. at 327.

In Smith v. Café Asia, No. 07-621 (RWR/JMF) (D.D.C. Oct. 2, 2007), the D.C. District Court ordered the plaintiff in a sexual orientation discrimination case to preserve allegedly lewd images stored on his personal cell phone and to permit inspection of those images by a designated attorney for the defendant, because they were potentially probative of whether the conduct of which plaintiff complained was unwelcome and subjectively offensive.  The Court, denying defendant’s motion to compel the images outright, instead crafted a remedy that it believed appropriately balanced the defendant’s right to discovery and plaintiff’s right to privacy.  Noting that the images were subject to challenge if offered as evidence at trial, the magistrate judge hearing the discovery motion ordered preservation and limited inspection of the images so that the trial judge could rule on questions of admissibility pre-trial or in limine.

Priceline, Travelocity and Cingular Wireless each contracted with DirectRevenue LLC to deliver ads to consumers. To service its clients (including Priceline, Travelocity and Cingular Wireless), DR installed adware on millions of computers. The adware, which was undisclosed to users and difficult to remove, monitored the websites visited by the users and collected the information they typed into web forms. The NY AG filed a law suit alleging that DirectRevenue had violated New York consumer protection law, then pursued DirectRevenue's three major advertiser clients.

Unknown
Newspaper, one of several news organizations subpoenaed for documents relating to correspondence regarding sensational murder case, refuses to turn over for inspection its files of readers' email to its online news site. Defense counsel in the murder case sought the materials to support its case for change of venue.

No. 71070-8 (Wash. 2002)
WA
The Washington Supreme Court upheld a conviction for second degree rape based on email messages between the defendant and a police officer. The defendant appealed a lower court ruling and argued that the email messages were copied in violation of the Washington Privacy Act, which prohibits the "copying of private communications transmitted by telephone, telegraph, radio, or other device.

896 F. Supp. 590 (E.D. La. 1995)
Federal
Court refused to suppress allegedly privileged documents that defendants had made publicly available on the Internet, but reserved the question whether use of such documents in discovery or at trial might be prohibited.

Spokane Cty. Sup. Ct., Dec., 1999
WA
Washinton's all-party consent rule to record communications does not apply to the Internet. Defendant was accused of attempting to meet a minor in order to have sex.

208 F.3d 633 (7th Cir. 2000)
Federal
Defendant in fraud trial appealed trial judge's exclusion of allegedly exculpatory evidence on third party web sites. Defendant attempted to qualify evidence under exception to hearsay rule for business records, arguing the materials were business records of the third parties' ISPs.

206 F.3d 392 (4th Cir. 2000)
Federal
A government employee was charged with violating federal laws against possession of child pornography. The employing agency identified incriminating documents on his computer.

76 F. Supp. 2d 773 (S.D. Tex. 1999)
Federal
Plaintiff's only evidence that defendant in personal injury suit owned the vessel on which an injury occurred was information from a Coast Guard online database. Court held that information from the Internet was too unreliable to be admitted because there was no guarantee it was accurate and unaltered.

184 F.3d 900 (D.C. Cir., 1999)
Federal
Court upheld regulation of U.S. Archivist allowing federal agency email and word processing files on personal computers to be destroyed once copied to paper or electronic record keeping system.

55 F. Supp. 2d 504 (W.D. Va. 1999)
Federal
Customers of ISPs do not have a reasonable expectation of privacy in information they give to the ISP, the court held. Government investigator in sting operation obtained personal information about defendant from ISP based on warrant that was later admitted to be defective.

Filed Apr. 12, 1999
Unknown
Suit filed against unknown defendants who fabricated and posted a story on a Web site intended to look like plaintiff's Web site. Plaintiff issued subpoenas to portal companies, including Yahoo! and Lycos, for all documents which would identify the people who did the posting.

168 F.3d 532 (1st Cir. 1999),
Federal
The government did not exceed the scope of its search warrant when it undeleted the defendant's computer files which contained child pornography. The court reasoned that the seizure of the unlawful images was within the plain language of the warrant and their recovery, after attempted destruction, is no different than decoding a coded message lawfully seized or pasting together scraps of a torn-up ransom note.

50 M.J. 550 (A.F.C.C.A. 1999)
Unknown
There was no reasonable expectation of privacy in e-mails when the government is the host server, accounts were to only be used for official government business, and there was a notice to all users when they log on that they are subject to monitoring by the systems administrator.

29 F. Supp. 2d 495 (N.D. Ill.. 1998)
Federal
In determining the value of a damaged machine, the trial court held that affidavit of the president of the machine manufacturer was entitled to reliance over affidavit of administrative assistant who found sites on the Internet offering the machine at much lower valuations. The court explained that the administrative assistant did not have any personal knowledge of the machines and the market, but was only reporting the data that appeared on her screen.

111 F.3d 1472 (10th Cir. 1997)
Federal
Affirming district court grant of summary judgment against computer bulletin board system operator Davis in a constitutional challenge to the seizure of his equipment. After Davis sold obscene CD-ROMs to an undercover officer, a warrant was obtained to search his business premises; police officers determined pornographic CD-ROM files could be accessed through the bulletin board and seized the computer equipment used to operate it.

No. C38925 (Cal.Super.Ct., 1/30/97)
CA
First conviction stemming from use of falsified email. Defendant found guilty of falsifying email message for use as evidence in obtaining settlement in civil sexual harassment action against former boss.

119 F.3d 742 (9th Cir. 1997)
Federal
In prosecution for violation of federal child pornography laws, warrant authorizing seizure of defendant's computer system was not invalid, since probable cause existed. In the original action, several counts against defendant were dismissed when evidence of electronic storage and transmission of data allegedly downloaded from a bulletin board in Denmark was ruled inadmissible.

945 F. Supp. 441 (N.D.N.Y. 1996)
Federal
Search of AOL headquarters, servers and disks for evidence of an AOL subscriber's trafficking in child pornography was not unreasonable under the Fourth Amendment; warrant authorizing search was not insufficiently particular regarding files to be searched.

42 M.J. 568 (A.F.Ct.Crim.App. 1995), review granted in part, 44 M.J. 41 (U.S. 1996)
Federal
Air Force Court of Criminal Appeals found that there is a reasonable expectation of privacy in email for Fourth Amendment search and seizure purposes. On review, Defendant convicted for transporting obscene images through online computer service.