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Judges Question DOJ Two Step Approach to Email Searches

As reported in the Wall Street Journal, at least two federal judges question the constitutionality of the two step process utilized by the United States Department of Justice to review e-mail communications in criminal investigations.  In step one, the Justice Department obtains a warrant for all email messages connected to an account believed to contain evidence related to an investigation.  In step two, once the messages are obtained, the Department performs searches on the entire message collection to identify relevant messages.  When completed, irrelevant e-mail messages from the account are discarded.

However, Magistrate Judges John Facciola in Washington, D.C., and David Waxse in Kansas City, Kan., believe the first step may run afoul of the Constitution is because “it places too much irrelevant, private information with government investigators.”  The article goes on to note that the judges have rejected or modified a number of Justice Department warrant applications over the past year as being too far reaching. The article is here.

Posted on April 7, 2014 in E-Discovery, E-Discovery in Criminal Cases, Electronically Stored Information (ESI), Privacy

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.

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