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

Accused Murderers Not Allowed Access Victim's Social Media Info

Prior to trial two accused murderers will not be allowed to access the social media info of the victim and a witness.

 

Facebook Inc. v. Superior Court of S.D. City & Cty., 2015 BL 289675, Cal. Ct. App., No. A144315, 9/8/15

    The court quashed subpoenas from the accused that sought the victim and witness's subscriber information from Facebook Inc., Instagram LLC, and Twitter Inc. The social media companies' motions to quash were initially denied by the trial court. The companies petitioned for a write of mandate in the appellate court, and argued that the trial court abused its discretion.

    Though there are certain exceptions to The Stored Communications Act-which prohibits subscriber information disclosure-there is not a mechanism for criminal defendants to gain access to private communication content.

    The court was not convinced that the defendants' constitutional rights to present a complete defense, to cross-examine witnesses, and to have a fair trial, trumped the rights of privacy that the account holders have under the SCA. The court indicated that the Sixth Amendment right to confrontation and cross-examination does not guarantee pretrial access to otherwise privileged or confidential information.

    The court indicated that the level of sensitivity of the digital information that can be considered in legal proceedings is high. The court was reluctant, and indicated that many other judges are as well, to allow for a broad "everything under the sun" discovery when it comes to electronically stored information of this sort.

     For criminal situations, the SCA only allows for content disclosure to a government agency or entity pursuant to a warrant or by an administrative subpoena or a court order. The government agency is required to give specific facts showing there are reasonable grounds to believe the contents of the communication, the communication here being social media, is relevant to an ongoing criminal investigation.

     This decision is only related to pretrial discovery. The court said that "[n]othing in this opinion would preclude Defendants from seeking at trial the production of the materials sought here (or petitioners again seeking to quash subpoenas), where the trial court would be far better equipped to balance the Defendants' need for effective cross-examination and the policies the SCA is intended to serve."

http://www2.bloomberglaw.com/public/desktop/document/Facebook_Inc_v_Superior_Court_of_SF_City__Cty_No_A144315_2015_BL_