Technological Advances Does Not Lower Defendant’s Proof of Prejudice Standard

Even if privileged computer files are improperly accessed by the government, the defendant still needs to show that the access prejudiced them by proving that the material was used during the case

United States v. DeLuca, 2016 BL 354269, 11th Cir., No. 15-12033, 10/25/16.

The Eleventh Circuit ruled that the defendant must show they were prejudiced when privileged information is improperly turned over to a prosecutor, even when the files are electronic. The issue was created during an investigation by a “filter team” during a financial fraud investigation that improperly sent attorney-client communications to the prosecutors involved in the case. The defendant argued that he should not need to prove prejudice because computer files make it impossible to identify what has been opened or been seen by prosecutors, whereas it is easier to determine what paper files were seen or used by a prosecutor in preparing their case. The defendant further argued that a new standard should be used for electronic files because “[t]he rules that were reasonable in a world run on paper are not suitable to the electronic age.”

The circuit court, however, rejected this argument. It refused to lower the standard of proof for high-tech violations of an attorney-client privilege, stating “Even accepting his contention that technological changes have made accessing privileged communications easier than it used to be in an age of paper records, it does not clearly follow that showing prejudice is more difficult than it used to be.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_DeLuca_No_1512033_NoNonArgume_Calendar_2016_BL_35?1478716727

Police Frisk During the Service of a Civil Writ for Child Support Okay

During the service of a writ of child support, the police executing the writ may frisk and search the person in the writ for weapons because of the search-incident-to-arrest exception

United States v. Phillips, 2016 BL 273057, 11th Cir., No. 14-14660, 8/23/16.

   The Eleventh Circuit ruled that a frisk during the service of a writ of child support is okay through the the Fourth Amendment exception allowing for a search-incident-to-arrest. The court held that under Florida law, the writ of attachment in this case is similar to a bench warrant, which allows police to pick up people to bring them into court. The court stated, “Because bench warrants and writs of bodily attachment for unpaid child support are virtually indistinguishable, the long historical pedigree of the former convinces us that the latter also passes constitutional muster.”

   This issue initially arose because the defendant, when searched, was found to have a gun on his person and was later convicted of being a felon in possession of a firearm.

http://www.bloomberglaw.com/public/document/United_States_v_Phillips_No_1414660_2016_BL_273057_11th_Cir_Aug_2.