SUBPOENAS v. SEARCH WARRANTS:
THE CURRENT STATE OF THE LAW
AMERICAN BAR ASSOCIATION
WHITE COLLAR CRIME NATIONAL INSTITUTE
MIAMI, FLORIDA
MARCH 6, 2008
KURT STITCHER
LEVENFELD PEARLSTEIN, LLC
SUBPOENA ISSUES
 NEGOTIATION/OBJECTION
– MOTION TO QUASH: Rule 17(c)
– MAY BE ABLE TO LIMIT SCOPE
 SEGREGATION
– TECHNOLOGICAL
– HUMAN REVIEW
SEARCH WARRANT ISSUES
 OBJECTION
– MOTION FOR RETURN OF PROPERTY:
Rule 41(g)
– EX POST ONLY
 SEGREGATION
– SEIZURE/IMAGING BY GOVERNMENT
– PROBLEM: INTERMINGLED FILES
SUBPOENA KEYS
 PRE-PRODUCTION NEGOTIATION
 PRE-PRODUCTION OBJECTION
 PRE-PRODUCTION SEGREGATION
SEARCH WARRANT KEYS
 NO PRE-PRODUCTION NEGOTIATION
 NO PRE-PRODUCTION OBJECTION
 NO PRE-PRODUCTION SEGREGATION
IMPLICATIONS FOR CLIENTS
 LIKE NIGHT AND DAY
 SUBPOENA = SOME CONTROL
 SEARCH WARRANT = NONE
 MOST CRITICAL FOR PRIVILEGED/
PROTECTED INFORMATION
SEARCH WARRANT
REQUIREMENTS
 BASES
– RULE 41
– FOURTH AMENDMENT
 REQUIREMENTS
– PROBABLE CAUSE
– PARTICULARITY
COMPLICATING FACTORS
 PRACTICAL
– VOLUME OF ESI
– RELATIONAL DATA: INTERMINGLING
 LEGAL
– NO METHODOLOGY REQUIREMENT
– NO ON-SITE SEARCH REQUIREMENT
THE END RESULT
 WHOLESALE ESI SEIZURES
– HARDWARE OR IMAGING
– STORAGE DEVICES
 POST-SEIZURE “SEARCHES”
– BROAD & SWEEPING
– “PLAIN VIEW” SEIZURES
THE FINAL INSULT:
RULE 41(g)
 UNLAWFUL SEARCH/SEIZURE
– MUST ESTABLISH 4TH AM. VIOLATION
– G CAN KEEP UNDER 4TH AM. EXCEPTION
(GOOD FAITH; IMPEACHMENT; INEVITABLE DISCOVERY;
PURGING OF THE TAINT)
 LAWFUL SEARCH/SEIZURE
– NEED EQUITABLE JURISDICTION
– RETENTION MUST BE UNREASONABLE
THE BALCO DECISION
 FEDERAL GJ INVESTIGATION
– SUBPOENA TO MLB => NO DOCS
– SUBPOENAS TO 3RD PARTY LABS => MTQ
 SEARCH WARRANTS FOR LABS
– RESISTANCE FAILS => DIRECTORY IMAGED
– ALL OF LAB’S SPORTS DRUG TESTING SEIZED
 MORE SUBPOENAS & WARRANTS
– THIRD PARTIES UNAWARE/FAIL TO OBJECT
– DIST. COURTS ORDER RETURN
THE MAJORITY OPINION
 NO EQUITABLE JURISDICTION
– NO “CALLOUS DISREGARD” FOR MLB RIGHTS
– SUBPOENAS. AND WARRANTS OK
– IMAGING DIRECTORY OK: G DOES NOT HAVE
TO RELY ON SEARCHED PARTY
 NO BASIS FOR PROPERTY RETURN
– G HAD PROVIDED COPIES TO LABS
– G NEEDED ESI FOR FURTHER INVESTIGATION
– DID REQUIRE TAMURA COMPLIANCE
THE DISSENTING OPINION
 CALLOUS DISREGARD => EQUITY
– G AVOIDED OBJECTION WITH 1-2 PUNCH
– G REVIEWED ESI W/O NEUTRAL OBSERVER
– O-O-J THREAT TO LAB WAS OUTRAGEOUS
 PROPERTY RETURN PROPER
– NO PC BEYOND FIRST 10 MLB PLAYERS
– PLAIN VIEW NO GOOD FOR INTERMINGLED ESI
– 3RD PARTIES PREJUDICED W/NO NOTICE
BALCO’S BOTTOM LINE
 NO ABILITY TO CHALLENGE
– SEIZURE BEYOND PROBABLE CAUSE
– SEIZURE OF PRIVILEGED/PROTECTED ESI
 ALL ESI WARRANTS ARE “GENERAL”
 41(g) GUTTED
– “UNLAWFUL” SEARCH UNLIKELY
– COPIES TRUMP “UNREASONABLE” RETENTION
 THIRD PARTIES SOL: NO NOTICE