Professional Documents
Culture Documents
direct the government and all its agents to refrain from examining any of the
contents of the computer server seized on July 27, 2007 and shows the court
the following:
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by the company during the time that the company was in operation.
4. The government did not inform the Magistrate that in August, 2001,
the computer seized on July 28, 2007) and following a Rule 41(g)
5. The government did not inform the Magistrate that the server contains
relevance whatsoever with the current case. The Magistrate was also
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Gerald Jones), Arent Fox (Washington, D.C. firm which had several
the defense at trial. In fact, the government has filed a motion with
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it will rely on this defense at trial (despite the absence of any rule of
defense has still not been made and that any documents that are
satisfied with the timetable set forth in Rule 16 and the Local Rules,
7. The government did not tell the Magistrate that through the issuance
The search warrant that was obtained by the government has resulted in
the seizure of a computer server that has the capacity to contain millions of
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records, recipes, games, music and everything else that can and is contained
warrant, and this court has provided no limits, on what the government may
examine and study during the course of its execution of the search warrant.
In fact, the “execution of the search warrant” will now last for months as the
government is directed to limit the time of its search of the computer, or its
examination of documents or records which are not within the scope of the
for a computer is a non sequitur. The entire computer and all of its contents
have been seized. The “to be seized” attachment, therefore – to the extent
computer. What the search warrant fails to limit is what can be examined, or
personnel. Nor is there any limit to the length of time that the government
can keep the original or the copies that it will make on the mirror image.
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It is no secret to the lawyers and the court that once the government gains
control of the computer, its ability to investigate its contents are not
agents, and the investigative agents can examine whatever they choose to
examine. Evidence that is discovered that is not within the four corners of
Even information that is not used at trial, and thus not subject to a motion
of the company to his or her lover or spouse. The government agents have
sites each employee examined over the course of the years that the computer
their plans for the future, or about how they plan to increase profits, or spend
profits, or about how any other personal matter, are not subject to seizure.
Yet, they have all been seized and are subject to being examined for an
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Without any limitations on what the government can do, now that it has
the computer in its possession, there is no method by which this court can
company, the agents simply don’t have the time to review at any length
determine that the document is irrelevant, and by necessity, must move on.
irrelevant documents has no time constraint. The agents can spend hours
examining the letters that Chris Stoufflet wrote to his father and his other
the search. And again, it is not just evidence that the defendant seeks to
copied and never returned, thus enabling the government, or any law
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enforcement agent to review the information on the computer from now until
The government has offered to utilize a “taint team” to examine all the
lawyers. Given the number of lawyers and the extent to which their advice
was shared between the company officials, it is unlikely that a “taint team”
protect the defendants’ rights. Moreover, the defense simply does not
believe that a taint team comprised of assistant United States attorneys in the
same office as the trial lawyers in this case can provide to the defendants the
protection that they are entitled to under the Sixth Amendment. The fox is
simply not the appropriate guardian of this hen house. See, In re Grand Jury
Subpoenas 04-124-03, 454 F.3d 511 (6th Cir. 2006) (grand jury subpoena
SDI Future Health, Inc., 464 F.Supp.2d 1027 (D.Nev. 2006) (discussing
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In addition, the use of a taint team does not ensure that privileged
on the taint team. Members are not sworn by the court to confidentiality.
Members of the taint team will presumably spend virtually every day, side-
unenforceable assurance of good faith that the court and the defendant are
privileged materials will not remain privileged vis-à-vis every other person,
for every other purpose that the taint team decides is appropriate.
communications. See United States v. Campbell, --- F.3d --- (11th Cir.
2007).
would like the opportunity to review the contents of the hard drive that was
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seized and more fully particularize this motion (a mirror image hard drive
preserve the integrity of the computer that was seized). Once the defense
submit a plan that will allow the parties to agree on a submission. Indeed,
had the government simply issued a subpoena, rather than sought a search
(again).
area of the law is still far from quick. Nevertheless, some cases have been
decided that demand that the government limit its search of computers to
protect the privacy rights of the people who used the computer. See
generally United States v. Carey, 172 F.3d 1268 (10th Cir. 1999); United
Syphers, 296 F.Supp.2d 50 (D.N.H. 2003) (limiting the length of time that
possibility that government will retain mirrored hard drive for years while
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that the defendant urges the court to take in this case – was set forth in In re
Search of 2817 W. West End, 321 F.Supp.2d 953 (N.D.Ill. 2004). In West
End, the court decided that a continuing monitoring of the search by the
Amendment forbids.
At the present time, the defendant simply urges the court to ensure that
the parties maintain the status quo and allow the defendant an opportunity to
review what has been seized, and then to make a more detailed proposal
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RESPECTFULLY SUBMITTED,
Respectfully submitted,
_____________________________
DONALD F. SAMUEL
Ga. State Bar #624475
Garland, Samuel & Loeb, P.C.
3151 Maple Drive, NE
Atlanta, Georgia 30305
404-262-2225
Fax 404-365-5041
dfs@gsllaw.com
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I hereby certify that I have this date served the within and foregoing
Execution of the Search Warrant Authorized on July 25, 2007 which will
record.
DONALD F. SAMUEL
Ga. State Bar #624475
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