Court: Prosecutors Can’t Rummage Around in a Defendant’s Gmail Account — U.S. v. Cioffi

29 10 2009

Eric Goldman’s blog

[Post by Venkat]

The government is prosecuting a couple of Bear Stearns hedge fund managers for securities fraud and related offenses. I came across a story that prosecutors obtained evidence from the gmail account of one of the defendants which prosecutors recently disclosed. (“E-Mails Seen as a Flash Point in Bear Stearns Fund Managers’ Fraud Trial“) In some ways I think this illustrates one of the pitfalls of using a service such as gmail. Gmail stores your data forever – or at least doesn’t give you a ton of control over when it is deleted – so it’s much easier for prosecutors to obtain this evidence. If you stored the data on your own servers, you may be able to get by with deleting the data pursuant to a regular document retention/destruction policy. And more importantly, there’s a much higher likelihood of you knowing when the data has been or is about to be seized. (It’s more difficult to obtain email from a service provider in a civil case.)

Interestingly, the defendant whose email was disclosed by the government as evidence in the Bear Stearns case prevailed in a motion to suppress the gmail evidence. (US v. Cioffi, et al., Case No. 08-CR-415 (FB) (E.D.N.Y.; Oct. 26, 2009).) (Access a copy of the ruling at Scribd [pdf] here; see the WSJ story here (“In Setback for Bear Stearns Case, Judge Suppresses Email“).)


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