Leonard Deutchman

August 02, 2017 | The Legal Intelligencer

In United States v. Stimler, No. 
15-4053 (Third Cir. July 7), the U.S. Court of Appeals for the Third Circuit held that defendant Jay Goldstein's Fourth Amendment rights were not violated when the magistrate issued an order under the Stored Communications Act, 18 U.S.C. Section 2703(d) (SCA), compelling AT&T to provide to the government historic cell site location information (CSLI) generated by Goldstein's phone. Goldstein had argued that the order was unconstitutional because to obtain it, the government had needed to show only "reasonable grounds" that the information sought would be kept by AT&T and help prove the charges facing Goldstein, while the government should have been required to meet the Fourth Amendment's higher evidentiary standard of probable cause.

By Leonard Deutchman

10 minute read

June 08, 2017 | The Legal Intelligencer

Examination of the court's opinion reveals questionable reasoning as to a few key issues. The first issue is one not addressed: standing. Assuming that the plaintiff actually did use the "find my iPhone" application to locate the iPhone at the defendant's residence, and that the application worked properly—it is odd that the phone would be at that location, as opposed to OSCO's evidence locker—it is hard to see what reasonable expectation of privacy, under the Fourth and Fourteenth amendments or any federal or state statutes (none were cited), the plaintiff would have in a phone which was initially in the possession of the plaintiff's fiancé and was thereafter in the possession of OSCO and the defendant.

By Leonard Deutchman

5 minute read

June 01, 2017 | The Legal Intelligencer

In Pearce v. Emmi, No. 16-11499, 2017 BL153011 (E.D. Mich., Southern Div. May 8), the plaintiff, both individually and as "next friend" of her infant child, brought suit against the defendant, a member of the Oakland County Sheriff's Office (OCSO) who had led a search involving narcotics trafficking and which, inter alia, led to the seizure of three electronic devices from one Cody Furhman, the plaintiff's fiancé.

By Leonard Deutchman

17 minute read

May 03, 2017 | The Legal Intelligencer

In United States v. Apple Macpro Computer, No. 15-3537 (Third Cir. March 20), the U.S. Court of Appeals for the Third Circuit held that the district court properly found appellant John Doe in contempt of court for failing to comply with an order under the All Writs Act, 28 U.S.C. Section 1651, which required him to produce—in a fully unencrypted state—several devices that had been properly seized, but which were in an encrypted state. The court rejected the appellant's argument that his decrypting of the devices would force him to violate his Fifth Amendment right against self-incrimination. The court's proper ruling is an important one, as encryption of devices is prevalent in the digital world, and decryption by the target is more and more the best and least costly way for the government to access the data in devices seized.

By Leonard Deutchman

21 minute read

April 06, 2017 | The Legal Intelligencer

The application of federal search warrants issued under the Stored Communications Act has become increasingly problematic as more entities store some or all of their data outside of the United States, even if those entities can readily access that data within the United States.

By Leonard Deutchman

24 minute read

March 02, 2017 | The Legal Intelligencer

In the beginning, there was Zubulake. The series of opinions that put e-discovery on the legal map concerned a plaintiff suing UBS Warburg for gender discrimination. When the plaintiff received far less discovery than she reasonably expected to receive (less than she herself had maintained from her time as the defendant's employee), she moved to compel production and, eventually, for spoliation sanctions. The court ordered that an "adverse inference" instruction be issued, compelling the jury to find that anything not produced by the defendant would have proven the plaintiff's case.

By Leonard Deutchman

31 minute read

February 02, 2017 | The Legal Intelligencer

If you looked to popular, good legal publications (online and in paper) to follow trends and issues regarding the intersection of digital technology and the law, you will see many articles and columns discussing high sophisticated matters. Cyberhacking; the implementation of the "Data Shield" agreement between the United States and the European Union under which the EU will allow data to be imported into the United States if the importer implements the privacy protections the EU enforces; sophisticated technical and legal issues regarding e-discovery—these are some of the typical writings the reader of these publications will see.

By Leonard Deutchman

20 minute read

January 05, 2017 | The Legal Intelligencer

Last week, I discussed the case, United States v. Ganias, 824 F.3d 199 (2nd Cir. 2016), cert. denied, No. 16-263 (S.Ct. Dec. 5), in which the U.S. Court of Appeals for the Second Circuit, en banc, reversed a panel opinion that had vacated the defendant's criminal conviction for two counts of tax evasion on the ground that the search of the defendant's computers violated the Fourth Amendment. The search had been conducted upon forensic images (often referred to as "mirror" images) of hard drives of the defendant's computers, which drives had been imaged in 2003 as part of execution of a search warrant for evidence of one crime, then re-searched in 2006 as part of execution of a second search warrant for evidence of the tax evasion charges. In this part of the series, I discuss the meaning and importance of forensic imaging, and the Second Circuit's take on all of it.

By Leonard Deutchman

17 minute read

December 29, 2016 | The Legal Intelligencer

In United States v. Ganias, 824 F.3d 199 (2nd Cir. 2016), cert. denied, No. 16-263 (S.Ct. Dec. 5), the U.S. Court of Appeals for the Second Circuit, en banc, reversed a panel opinion that had vacated the defendant's criminal conviction for two counts of tax evasion on the ground that the search of the defendant's computers violated the Fourth Amendment. The search had been conducted upon forensic images (often referred to as "mirror" images) of hard drives of the defendant's computers, which drives had been imaged in 2003 as part of execution of a search warrant for evidence of one crime, then re-searched in 2006 as part of execution of a second search warrant for evidence of the tax evasion charges.

By Leonard Deutchman

22 minute read

December 01, 2016 | The Legal Intelligencer

Over the past year, there have been so many articles that focus upon the proliferation of artificial intelligence and other advanced technologies in e-discovery, and the legal field in general, as well as numerous articles regarding the projected implications of the amendments to the Federal Rules of Civil Procedure pertaining to e-discovery that took effect on Dec. 1, 2015, that it seems sometimes that a very basic aspect of e-discovery practice and litigation has been overlooked: the skill and understanding of practitioners and courts. In this month's article, I will discuss those qualities, focusing upon the recent opinion in Venturedyne v. Carbonyx, No. 2:14-CV-351-RL-JEM (N.D.Ind. Nov. 15), to illustrate how such skills and understanding are essential to a party's success in prevailing in e-discovery matters, to the court in ruling upon them and, if anyone cares, to uncovering the truth.

By Leonard Deutchman

22 minute read