BLOG BULLETS:

• Defendants are entitled to discovery of software programs the government uses to conduct forensic analysis it uses in its case.
• Government assurances discovery would be fruitless and not lead anywhere are not a basis for denying such discovery.
• This case law should also extend to discovery of other sorts of technology the government relies on developing its case.

 

NOW THE BLOG:

I ran across another interesting discovery case – about computer forensics issues – that I thought I’d share in this short post today.  The case is United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012), and the issue presented was whether the defense was entitled to discovery on a software program, named “EP2P,” that the FBI had used to do a forensic analysis of the defendant’s computer in a child pornography case.  As outlined in the opinion:   “Although [the defendant] had an opportunity to cross-examine the government’s EP2P expert, he was denied background material on the software that could have enabled him to pursue a more effective examination.”  Id. at 1112.

In holding the district court abused its discretion in denying defense discovery about the software, the Ninth Circuit made two important points.  First, it quoted a Third Circuit case with approval, stating: “A party seeking to impeach the reliability of computer evidence should have sufficient opportunity to ascertain by pretrial discovery whether both the machine and those who supply it with data input and information have performed their tasks accurately.”  Id. (quoting United States v. Liebert, 519 F.2d 542, 547-48 (3d Cir. 1975)).  Second, it rejected a government argument that government assurances were sufficient.  It explained:

In cases where the defendant has demonstrated materiality, the district court should not merely defer to government assertions that discovery would be fruitless.  While we have no reason to doubt the government’s good faith in such matters, criminal defendants should not have to rely solely on the government’s word that further discovery is unnecessary.  This is especially so where, as here, a charge against the defendant is predicated largely on computer software functioning in the manner described by the government, and the government is the only party with access to that software.

Budziak, 697 F.3d at 1112-13.

Keep this in mind when the government is using proprietary software – or other material only it has access to – to support a computer forensic analysis, or any other evidence.  And think about how it might expand to other contexts.  Budziak was cited in another discovery case I blogged about last year for the general proposition that a defendant “should not have to rely solely on the government’s word that further discovery is unnecessary.”  United States v. Soto-Zuniga, 837 F.3d 992, 1002 (9th Cir. 2016) (quoting Budziak, 697 F.3d at 1013).  (For the prior post on Soto-Zuniga, see “Those Great Discovery Opinions From a Couple of Years Ago Are Still Being Followed” in the October 2016 link at the right.)  And think about other technology the government may be relying on that a defendant can’t independently access.  One example that comes to mind from one of my cases 20 years ago is information about the tracking devices the government had started putting in packs of bait bills for tellers to give bank robbers.  I got the information in that case through a subpoena directed to the company, but trying to get such information through discovery from the government might be another approach.