In Metropolitan Corporate Counsel's (MCC) October 2017 issue, iDS experts Dan Regard and Hunter McMahon are joined by U.S. Magistrate Judge David Waxse, Don Myers - Shareholder at Littler, and Sonya Judkins - Manager of Legal Discovery and Compliance at Sprint, for a roundtable discussion on the upcoming Carpenter v. U.S. case to be heard by the Supreme Court, the Fourth Amendment and eDiscovery, and the overall landscape of data privacy in today's data-rich world. Below is an excerpt from that discussion.
Introduction: In June, the U.S. Supreme Court agreed to review Carpenter v. U.S., which concerns warrantless access to cellphone location records. This thrusts the high court smack into the murky intersection of digital evidence and the Fourth Amendment. Add in the different standards for disclosure of electronic communications held by third-party internet service providers under the Stored Communications Act, and you have a recipe for controversy and confusion. In the discussion below, our participants confront these and related issues from a variety of vantages: Sonya Judkins, manager of electronic discovery and compliance with Sprint; U.S. Magistrate Judge David Waxse from the U.S. district court in Kansas City, Kansas, a highly experienced judicial “maverick” on ESI searches; Don Myers, a Littler Mendelson shareholder and member of the firm’s e-discovery group; Dan Regard, a programmer and lawyer who is CEO of iDiscovery Solutions; and Hunter McMahon, director of data analytics for iDiscovery Solutions. Their remarks have been edited for length and style.
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How is probable cause under the Fourth Amendment different from reasonable grounds under the Stored Communications Act?
Regard: On the face of it, they have different definitions. Probable cause from a criminal law perspective poses a much higher standard; the other standard is much lower. That’s one of the concerns between the Fourth Amendment and the Stored Communications Act.
Waxse: Clearly, reasonable grounds was intended to be a lower standard than probable cause. That said, we need better definitions of both. I see opinions where I’m not sure how they got from one to the other.
Judkins: I think there’s a difference, as Dan was saying, as far as what the words reasonable and probable mean to me as a non-lawyer. I’m just trying to understand them. We could definitely use additional descriptions to clarify the difference. If you’re a non-lawyer on the receiving end of a subpoena, it’s hard, as Judge Waxse said, to understand what’s required. The more we discuss these meanings and provide examples, the further we will go toward clearing up confusion.
McMahon: Your Honor, do you think perhaps the lower standard under the Stored Communications Act was because of the original limitations allowed under that lower standard, as opposed to the difference between content and non-content, if you follow my logic?
Waxse: I try to avoid figuring out what Congress actually meant. It would be better if they attempted to more clearly define reasonable grounds because there are some opinions now that make it clear that, depending on the circumstances, it shouldn’t be a lesser standard.
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Please email Mr. Regard or Mr. McMahon to discuss potential data privacy and discovery issues you or your client are currently facing, as well as how the highly experienced iDS team can assist with expert consulting and legal technology needs on your next case or internal investigation.
The full roundtable interview is available as a downloadable PDF above and all of iDS' published pieces with MCC are available to view HERE
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