In the wake of the national financial crisis, both the U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) publicly committed themselves to enhanced enforcement of federal financial laws and regulations. Attorney General Eric Holder stated that the DOJ will “remain aggressive” in pursuing white-collar criminal cases.1 Similarly, SEC Chairwoman Mary Jo White pledged to make the Commission a “strong and effective cop” that will be “aggressive and creative” in its use of enforcement tools.2

Proof of these public pronouncements has taken the form of increased criminal prosecutions, criminal investigations, and SEC enforcement actions. Many of these actions, in turn, have demonstrated a new-found appetite among federal prosecutors, investigators, and regulators for obtaining significant amounts of electronically stored information (“ESI”).

Historically, limitations on the potential scope and cost of collecting, reviewing, and producing such electronic information that exist in civil discovery offered no relief or sanctuary to companies or individuals facing criminal or regulatory investigations. Recently, however, some members of the federal judiciary – steeped in civil eDiscovery experience – have demonstrated a willingness to require the government to (i) limit subpoenas to information for which the government has probable cause to request and (ii) destroy irrelevant information.

Fourth Amendment Limitations on Broad Subpoenas Seeking ESI

In In the Matter of the Search of Information Associated with [redacted] that is Stored at Premises Controlled by Apple, Inc., Magistrate Judge John M. Facciola – a leading jurist in the ever-evolving eDiscovery arena – denied the DOJ’s application for a search and seizure warrant directed to Apple Inc. as part of an investigation into receipt of kickbacks and conspiracy involving a defense contractor.3 The government’s subpoena application followed “a standard format” which divided the list of “Particular Things to be Seized” into two parts: (i) “Information to be disclosed by Apple,” and (ii) “Information to be seized by the government.” If authorized, the requested warrant would have required Apple to turn over “the entire universe of information” tied to a single email account. Once in receipt of that information, the government would sort through the data in order to find evidence relevant to their investigation.

Judge Facciola rejected the application, ruling that it was unconstitutionally overbroad. The Judge held that to comply with the Fourth Amendment, the search warrant could not make across-the-board requests for information, but had to be “tailored”4 to a probable cause justification. This meant that the government would be required to describe the information to be seized “with as much specificity as the government’s knowledge and circumstances allow.”5 Because the language used in the government’s application was general and generic, Judge Facciola concluded that the requested warrant would amount to nothing more than an unconstitutional “exploratory rummaging”6 through a personal email account.

The Apple case is not the first time Judge Facciola found a government warrant application for ESI unconstitutionally overbroad. On November 26, 2013, Judge Facciola issued an opinion significantly narrowing the scope of a search warrant for data associated with the Facebook account of Aaron Alexis, the former Navy employee identified as the Washington D.C. Navy Yard shooter.7 There, the court’s concerns focused on the search and seizure of information related to third parties and the government’s failure to identify how irrelevant information would be handled. Although the warrant application was ultimately granted, the Court required “that some safeguards be put in place to prevent the government from collecting and keeping indefinitely information to which it has no right.”8

These two opinions, along with others,9 suggest a potential trend among federal courts to take active steps to prevent abuse of the two-step search procedure permitted under Rule 41 of the Federal Rules of Criminal Procedure. The two-step procedure permits law enforcement officials to require the disclosure of an entire data storage medium and which it later reviews in order to “seize” information relevant to its investigation. Although Judge Facciola recognized that courts “will continue to issue warrants employing the two-step procedure,” he noted his view that it was “appropriate to incorporate minimization procedures into the warrants to comply with the Fourth Amendment.”10 Such “minimization procedures” encompass both steps to reduce the amount of information collected, including pre-screening data through the search capabilities of the holder of the ESI or a third-party vendor,11 and “Secondary Orders” that specifically require the government to return or destroy electronic data that has been collected but which is irrelevant to its investigation.12

Practical Implications for Recipients of Discovery Demands

On one level, the Apple case is simply Judge Facciola’s most recent opinion establishing innovative procedures for addressing the challenges posed by ESI, following his 2001 opinion in McPeek v. Ashcroft13 (helping set the standard for weighing the costs of eDiscovery), the Bethea v. Comcast14opinion in 2003 (providing guidance on the standard for granting a motion to compel disclosure of ESI), and the 2011 opinion in U.S. v. Halliburton15 (addressing the concept of proportionality of utility and cost in eDiscovery). Because of Judge Facciola’s recognized eDiscovery experience, it is likely that other federal courts may find the restrictions on federal search warrants set forth in the Apple and Alexisdecisions reasonable and required under the Fourth Amendment. Further, it is possible that courts will apply the principles announced in this case when reviewing overly-broad subpoenas directed to the target of an investigation or discovery demands seeking voluminous amounts of data served in civil litigation. Given the federal government’s current focus on aggressive enforcement of financial laws and regulations, individuals and entities must be cognizant of their abilities to limit the scope of a seemingly overbroad request electronic information and advocate for the use of techniques, including those that have been previously endorsed by courts, to narrow subpoenas and other requests for the production of ESI.