Abuse of Power

United States v. Comprehensive Drug Testing, Inc., 2010 WL 3529247 involves the federal investigation into steroid use by Major League Baseball players as well as Bay Area Lab Cooperative (Balco). The main issues arose from multiple government requests for subpoenas and warrants in various districts within the Ninth Circuit. The government convinced magistrates they needed to seize large volumes of computer information because electronic data could be disguised or destroyed if precise procedures were not used. The government claimed they would attempt to segregate non-responsive data on-site. The government, however, did not perform this segregation and exceeded the scope of the authorization by looking at non-responsive data. The applicable district court judges ordered the government to return the seized equipment and copies of information.

One district court judge was so upset with the government's overreaching that the judge remarked "what ever happened to the Fourth Amendment? Was it . . . repealed somehow?" (p. 1005). The Ninth Circuit (CDT II) agreed with the district courts, but most importantly, they included a section in the opinion called "Concluding Thoughts" where the court summarized key principles from the opinion that the court thought "magistrate judges must be vigilant in observing." CDT II, 579 F.3d at 1006. The principles included the government waiving the plain view doctrine in digital evidence cases; segregation and redaction of non-responsive information by a taint team; a demonstration of the actual risk of destroyed data, as well as previous efforts to get the data in other courts; specific search protocols; and rules on destroying or returning non-responsive data.