Electronically Stored Information & Criminal Proceedings

Electronically stored information (ESI) is a common feature of criminal investigations and proceedings. Law enforcement agencies seek various types of ESI to prove criminal activities and to prosecute suspects. At the same time, the Fourth and Fifth Amendments put limitations on what law enforcement can seize and search and what can be demanded of a suspect. Beyond questions of constitutional dimension, courts look for some degree of cooperation between prosecutors and defense counsel and expect defense counsel in multi-defendant prosecutions to coordinate what might be expensive and time-consuming discovery of ESI. This session focuses on the Fourth and Fifth Amendments in the context of “criminal ESI” and also considers how prosecutors and defense counsel might address post-indictment discovery of ESI.

Learning Objectives: 

1. Understand how the Warrant and Particularity Requirements of the Fourth Amendment may limit the ability to law enforcement to seize and search ESI
2. Recognize circumstances under which the Fifth Amendment privilege against self-incrimination might apply to attempts by prosecutors to compel access to ESI
3. Appreciate what steps might be taken by prosecutors and defense counsel to cooperate in post-indictment discovery of ESI