Constitutional Law Electronic Discovery

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Unmasking the anonymous online critic – first, there is the matter of jurisdiction

On Friday, the Supreme Court of Texas issued a 5-4 decision holding a plaintiff needs to establish jurisdiction over an anonymous blogger before a court will allow pre-suit discovery that would likely unmask the blogger’s...more

Second Circuit Finds Fourth Amendment Violation in Law Enforcement Retention of Computer Files Not Within Scope of Search Warrant

On June 17, 2014, the United States Court of Appeals for the Second Circuit issued a significant Fourth Amendment decision in United States v. Ganias. The decision is premised on the well-established notion that, because of...more

What’s in Your Wallet? Who Cares—What’s in Your Cell Phone Is More Important!

The United States Supreme Court has tackled the issue of cell phone privacy and ruled that data is different from other forms of technology. In late June, the Supreme Court issued an opinion: those of David Riley, a...more

Massachusetts High Court Permits Compelled Decryption of Seized Digital Evidence

Today, in Commonwealth v. Gelfgatt, No. SJC-11358 (Mass. June 25, 2014), a divided Massachusetts Supreme Judicial Court held that under certain circumstances, a court may compel a criminal defendant to provide the password to...more

Access to Cellular Phone Records by Defense Counsel

In many criminal cases, cellular telephone records are an invaluable resource. These records may shed light on whether an alleged victim or witness communicated with someone of importance in a case, and when. There are...more

BB&K Police Bulletin: Warrant to Search Electronic Records - Court Upholds Search of Computer and Storage Devices for Child...

Overview: The Ninth Circuit Court of Appeals recently found that probable cause supported a warrant authorizing the electronic search of computer equipment and digital storage devices belonging to a suspected child...more

The Nuts And Bolts Of Social Media Discovery

I recently addressed the general implications of the Stored Communications Act on locating and retrieving electronic evidence in a Law360 article entitled “A Hurdle to Obtaining Electronic Evidence.” As explained by the Ninth...more

Third Circuit Invalidates President Obama’s Appointment Of Former NLRB Member Becker; Becomes Second Appellate Court To Rule NLRB...

In late January, the D.C. Circuit ruled in Noel Canning that President Barack Obama’s January 2012 recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the National...more

Can the Government Search Your iPad or iPhone at the Border?

Can the United States search your laptop, camera, iPhone/iPad, or other devices at the border? Read this article on the Fourth Amendment rights and exceptions....more

Vermont Issues Significant eDiscovery / Fourth Amendment Decision

In civil litigation, eDiscovery disputes hardly ever rise to the level of constitutional importance. But in the criminal arena, the rules are different....more

Acted With Substantial Justification

Just wondering, but what does the phrase "acted with substantial justification" mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)? Does it mean the conduct that led the moving party to...more

"I Declare, It Is Necessary"

As every lawyer is aware, a party may propound more than 35 specially prepared interrogatories or requests for admissions simply by attaching a Declaration of Necessity pursuant to C.C.P. §2030.040 and C.C.P. §2033.040...more

McAfee & Taft RegLINC: Supreme Court prohibits federal common law nuisance suits seeking limits on carbon dioxide emissions By...

By a vote of 8 – 0, the United States Supreme Court recently ruled that congressional delegation of authority to EPA to regulate pollutants under the Clean Air Act (“Act”) speaks directly to regulation of carbon dioxide...more

Why Aren't You Using Requests For Admissions

If you are like most lawyers, you are using the typical discovery devices to gather up all your information--form interrogatories, special interrogatories, requests for production of documents, and of course the deposition...more

Changes Come to Confidentiality of Florida Court Filings

As the judicial branch transitions toward acquiring, maintaining, and distributing court records electronically, the Supreme Court of Florida has viewed the confidentiality of a narrow set of records as a...more

Smith v. Trailer Estates Park and Recreation District

Final Judgment in favor of Trailer Estates Park and Recreation District

The attached Final Judgment in favor of my client, Trailer Estates Park and Recreation District, was entered by the Court following a seven (7) day non-jury trial. The Court found in favor of Trailer Estates Park and...more

THERE IS NO REAL PRIVACY ON FACEBOOK AND OTHER SOCIAL NETWORKS

If you get sued in court, will your Facebook privacy settings protect you from opposing counsel’s request for electronic discovery? If that information is material and necessary for the opposition’s case and the...more

City of Ontario v. Quon

Supreme Court Decision in Quon

The search of the police officer’s text messages was reasonable, and therefore the officer’s Fourth Amendment rights were not violated. "Even if Quon had a reasonable expectation of privacy in his text messages,...more

United States v. Maynard, 615 F.3d 544 (Ct. App. D.C. 2010)

Opinion of the Court, Ginsburg, Circuit Judge

This decision is the subject of the grant of certiorari by the United States Supreme Court in United States v. Jones, 10-1259. Maynard and Jones were co-defendants. All legal issues have either been resolved or abandoned...more

Don’t Text & Drive…but Can the Police Search Your Cell Phone at the Traffic Stop?

If someone is stopped for breaking a Hands Free law, an interesting question is whether the police can do a warrantless search of the cell phone....more

Extra! Extra! No Tweeting in Court!

In United States v. Shelnutt, a member of the press requested the right to “Tweet” a criminal trial on Twitter. The court denied the request pursuant to Federal Rule of Criminal Procedure Rule 53. United States v. Shelnutt,...more

An Email State of Mind: Confessions of an Online Fraudaholic

A criminal Defendant challenged the admission of customer email messages from the trial as they “were hearsay and that their admission was highly prejudicial and violated the spirit of the Confrontation Clause of the Sixth...more

Measure for Measure: Sexting, District Attorneys and Restraining Orders

The case Miiller v. Skumanick, 2009 U.S. Dist. LEXIS 27275 (M.D. Pa. Mar. 30, 2009) is the story of a temporary restraining order being issued against a District Attorney from charging multiple teenage girls for felony child...more

Allan Webster v. Joseph Albero

Pre-Trial Memorandum

A blogger who operates a website that reports and comments on local news developments was sued for defamation by the Chief of Police of the City of Salisbury, Maryland. The Plaintiff (the Chief of Police) sought discovery of...more

In Re: National Security Telecommunications Records Litigation

Class Action: Plaintiffs' Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points & Authorities in Support of...

The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National...more

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