With Potential Civil Litigation, Government Cannot Destroy External Hard Drive

After the completion of criminal proceedings, the government cannot destroy a hard drive that may be used in potential civil litigation. 

United States v. Sember, 2016 BL 170363, S.D. Ohio, No. 3:14-cr-141, 5/27/16.

   After a jury found that a defendant did not commit theft of government property, the state attempted to recover a hard drive used in the trial to destroy the information. A federal district court in Ohio, however, prevented the hard drive’s destruction. The court refused to destroy the contested hard drive because the former defendant was preparing for a civil trial. “A party to civil litigation has a duty to preserve evidence, including electronically stored information, when it is put on notice that the evidence is relevant to existing litigation or may be relevant to future litigation,” the court said.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Sember_No_314cr141_2016_BL_170363_SD_Ohio_May_27_?1466032537

Late Attempt to Seal Wiretap Not Justified by Prosecutor's Workload

Federal law requires that intercepted communications be "immediately" presented for sealing once the warrant expires, and a prosecutor's preoccupation with another case is not a good excuse for noncompliance.

 

Finney v. State, 2016 BL 68689, Ga., No. S15A1739, 3/7/16

     The Georgia Supreme Court ruled that the upcoming oral argument which the prosecutor was worried about was not a surprise development that the state was forced to handle. The court also determined that the prosecutor's preoccupation with the upcoming oral argument did not explain why other lawyers in the office could not have filed the motion, or why the matter was not dealt with until eight days after the oral argument had concluded. See, 18 U.S.C. § 2518 (1) - (6).

http://www.bloomberglaw.com/public/desktop/document/Finney_v_State_No_S15A1739_2016_BL_68689_Ga_Mar_07_2016_Court_Opi?1458316618

Losing Ambiguous Text Messages Does Not Violate Due Process

A defendant's due process rights were not violated when the government failed to preserve text messages he had sent regarding the assault.

 

United States v. Harry, 2016 BL 58901, 10th Cir., No. 14-2160, 2/29/16

     During an investigation, incoming text messages were recovered from the defendant's phone, but the prosecution was unable to obtain any outgoing text messages. The defendant argued that the outgoing messages were exculpatory, and the prosecution's failure to preserve them violated his due process rights.

     The court ruled that the failure to preserve evidence violates due process only if the evidence was exculpatory and its exculpatory value was apparent before its loss. If the evidence was not obviously exculpatory but "potentially useful" the failure does not violate due process, absent bad faith. Here, the exculpatory value was not apparent, and there was no evidence of bad faith.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Harry_No_142160_2016_BL_58901_10th_Cir_Feb_29_201?1457718203