Los Angeles E-Discovery Lawyer & Attorney : McBride Law Firm : Electronic Evidence: Santa Monica, California

In US v. Comprehensive Drug Testing, Inc. et al, the Ninth Circuit Court of Appeals addressed a Fourth Amendment issue arising from an IRS seizure of "intermingled computer files" in executing a subpoena related to the steroids investigation of the Bay Area Lab Cooperative ("Balco").

Fans of Major League Baseball will immediately recall that the Balco steroids investigation has implicated numerous MLB players and their trainers in distribution and use of illegal steroids.

A Ninth Circuit panel of three judges addressed the questions of when and under what circumstances the government can seize, retain and use computer records that are "intermingled" with other computer files that fall outside of the scope of a subpoena or search warrant.

The original subpoena was issued to a Long Beach testing Laboratory, Comprehensive Drug Testing, Inc. ("CDT") targeting 10 MLB players who had been clients of Balco.

Intermingled in documents seized from CDT was a computer file referred to as the "Tracey directory" which contained drug testing results of more than 100 MLB players that were not Balco clients, but who had tested positive for steroids.  The government used information from the Tracey directory to the seize specimens and records of these 100 MLB players through issuance of additional subpoenas.

Three US district courts heard objections filed by the Major League Players Association in behalf of the players whose specimens and records had been seized.  All three district judges sided with the MLB Players Association, finding the government's search and seizure illegal under the Fourth Amendment.  These district judges were Florence-Marie Cooper (C.D.Cal.), Susan Illston (N.D.Cal) and James Mahan (D. Nev.). 

The Ninth Circuit, with one dissent, disagreed with each of the district courts' rulings.  The rulings by Judge Illston (N.D.Cal.) and Judge Mahan (D.Nev.) were reversed, and the decision by Judge Cooper (C.D.Cal) was affirmed, but only because the government did not properly perfect its appeal of that ruling.

The Ninth Circuit panel (opinion by Diarmuid O'Scannlain) explained:

Although the Players Association contends that the government behaved unreasonably by copying the entire Tracey directory, an analysis of the difficulty of segregating intermingled electronic data reveals the opposite. The Federal Judicial Center recently explained:

[S]ome computer-based transactions do not result in a conventional document, but instead are represented in integrated databases. Even less-complex ESI [electronically stored information] may be incomprehensible and unusable when separated from the system that created it.

Moreover, the volume and multiple sources of ESI may lead to disputes about the scope of discovery and may make review to identify and segregate privileged information more difficult .

At the risk of losing data, the government ensured that CDT could continue its business activities, thus evidencing the reasonableness and restraint.

 

The subpoena had allowed the government agents to "make an initial review of any computer equipment and storage devices to determine if the search could take place on location."  If the agents determined an on-site search was not feasible, they were authorized to remove the computers and storage equipment to an "appropriate law enforcement testing laboratory for further review."

Because of the breadth of the subpoena, and because the seizure allowed the testing laboratory (CDT) to continue its business activities with minimal constraint, the seizure was deemed by the Ninth Circuit to be a "reasonable" restraint, notwithstanding the lack of logical connection between the Fourth Amendment rights of the MLB players and the business convenience of the third-party testing laboratories.

As a result, government agents were allowed to remove and review the intermingled files, including the "Tracey directory" containing the names of 100 additional MLB players who were not the target of the original investigation.

And because the search itself was not "unlawful," the government was thereafter allowed to use the information provided in the seized Tracey directory to obtain testing specimens and records of 100 additional MLB players.  This was not, according to the Ninth Circuit, "fruit of the poisonous tree."

While civil cases receive the majority of focus of electronic discovery analysis, the sweeping breadth of ESI's potential treatment under the Fourth Amendment is an issue for all attorneys to be aware of, as this Ninth Circuit case demonstrates.

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