*1 have previously noted We America, UNITED STATES of re the financial
“courts should consider Plaintiff-Appellant, plaintiff and the amount of sources rights Stanley cases.” v. in civil costs v. 1069, Calif., F.3d So. Univ. of Cir.1999). (9th “Indigency is factor TESTING, COMPREHENSIVE DRUG may properly court consider the district INC., Defendant-Appellee. costs.” Id. deciding whether to award with applies equal rationale This same Major League Players Baseball There corpus petitioners. habeas force to Association, Petitioner- is, however, countervailing consideration Appellee, into account. The Antiterror to be taken Penalty Effective Act and Death ism v. Act Litigation were Prison Reform America, Respondent- United States intended, in some of the part, to ameliorate Appellant. defending against to the states costs petitions. We con of habeas are tide In Re Warrants Executed On Search here, however, ap costs on cerned 8, Inc., April CDT, 2004AT eases, petitioner can In habeas
peal. appeal obtaining without not take 1, Plaintiff-Appellant, Seal (COA), appealability which certificate that such a certification issue requires v. showing only upon “substantial right” for each denial of constitutional Defendant-Appellee. Seal appealed. issue U.S.C. 05-10067, 05-15006, Nos. 05-55354. 2253(c)(2),(3). Thus, § because there is a (the in place require COA mechanism Appeals, United States Court of ment) taking monitor preclude Ninth Circuit. appeals, the award costs is of frivolous discourage unmeritorious required Argued 2005. and Submitted Nov. appeals. Filed Dec. mind, principles these With case, of this turn to circumstances is an suggest that there absolute
we do in all circumstances.
prohibition costs here, petitioner is indi
Sengenberger, appeal
gent. presented substantial questions. To award costs
constitutional his Sengenberger, given financial
against
status, taking would undermine appeals.
meritorious The State Idaho’s costs is denied.
bill of *4 Peters, Nest,
Elliot R. Keker & Van LLP, Francisco, CA, argued the cause San movants-appellees Comprehensive Testing, Inc., Major Drug League Association; Players A. Baseball Ethan Nest, LLP, Balogh, Keker & San Van Francisco, CA, David P. Bancroft Bancroft, Hallam, Jeffrey C. Sideman & Francisco, CA, LLP, San were on the brief. *5 O’SCANNLAIN, F.
Before DIARMUID THOMAS, R. C. SIDNEY RICHARD TALLMAN, Judges. Circuit O’SCANNLAIN, Judge. Circuit must decide whether the United We from may retain evidence States drug ad- Major League testing Baseball’s (and an additional sub- ministrator enforce ongoing jury poena) part grand anof Frick, Erika R. Assistant States United investigation illegal into steroid use Francisco, CA, Attorney, argued San athletes. professional defendant-appellant United cause America; Attorney States States United I Ryan, Appellate Chief Hannah Kevin V. three arise Attorney These consolidated cases
Horsley, Assistant United States CA; Bay Valliere, Francisco, investigation the federal J. San from Barbara (“Baleo”) and its Attorneys Lab Cooperative Area and Assistant United States Nadel, illegal Parrella, alleged distribution of steroids A. Ross Jef- Matthew W. Stewart, athletes. The inves- Nedrow, frey professional D. M. San baseball Carter and, began August 2002 over Jose, CA, tigation were on the briefs. following years, produced several evi- information players for eleven with con- including grand jury testimony' later, nections to Baleo. One month MLB dence— —(cid:127) establishing probable cause to believe that responded that it had no such information. major league at least ten baseball then reasoned that be- illegal received steroids from Baleo. To- Quest6 cause CDT5 and had tested urine day government’s we decide the appeals samples from players during MLB separate from the adverse orders of three those entities —rather than MLB—had to (1) different district courts: an order possess samples testing records in Judge Florence-Marie Cooper the Cen- question. Therefore, is- California, tral District of requiring the subpoenas sued Quest, both to CDT and to to return property seized Comprehensive seeking drug testing from Drug Testing, Inc. in information for all (2) Beach, Long (“CDT”),1 California an players. MLB subpoenas were re- by Judge order James Mahan in the Dis- 5, 2004, February turnable on gov- but the Nevada, requiring trict of ernment extended that date to March to return property Quest seized from Di- 2004, Quest after promised CDT and agnostics, Inc. Vegas, Las Nevada destroy to alter of the evidence (3) (“Quest”),2 and by Judge order Su- requested. san Illston in the Northern District of Despite protracted negotiations, CDT California, quashing government’s May Quest producing any resisted 6, 2004, subpoenas Quest to CDT and materials, subpoenaed explaining that they grand jury related to the sitting in San fight production would of even a single Francisco, California. drug way test all Supreme *6 A Following Court. negotiations, further government, believing that a narrower part investigation Baleo, As of its into subpoena might effective, government issued new November 2003 served 3, a grand jury subpoena subpoenas 2004, on Major League on March seeking docu- (“MLB”),3 seeking Baseball drug testing ments related players eleven7 1. required government The courts also compliance.” Comprehen- ministrative See by Us, turn agents over all notes made Drug Testing: who re- http:// sive About www. cdtsolutions.com/abou1_us.html challenged viewed (last evidence. visited 10, 2006). Nov. Again, 2. required was also give up all reviewing agents. notes made Quest 6. offers laboratories conduct "drugs testing therapeutic drug of abuse and Baseball,” "Major League 3. unincorporat- monitoring” with "the most advanced meth- association, ed professional consists of two Quest odologies Diagnostics: available.” See leagues' baseball League National of Pro- —-the Services, Diagnostic Testing http:// & www. fessional Baseball Clubs and the American com/brand/business/b_bus_ questdiagnostics. League of Professional Baseball Clubs. lab_index.html (last 10, 2006). visited Nov. Quest's laboratory Vegas performed in Las 4. The names of the are under seal and drug testing player specimens on the opinion. are not disclosed in this appeals. issue in these consolidated third-party 5. CDT a "drug administrator of testing programs” and alcohol that was hired 7. The later decided not to seek drug pro- oversee drug testing MLB's use evaluation evidence related to one gram. company 22, "top 2004, The experts players, includes April eleven and on sent a pharmacology, toxicology, laboratory forensic letter to the withdrawing counsel for CDT review, management, legal, medical requests and ad- player. for documents related to that Contrary arguments, subpoenas appellee’s gov- These new Baleo connections. claimed its ernment never affidavits that April were returnable any danger being evidence was de- date, new return days Two before stroyed.11 Players’ Major League Baseball Asso- April April 7 and 8 warrants author- representing union athletes ciation—the drug ized the seizure of test records and Major League play who for Baseball8— specimens for ten named that it Balco-connected intended informed the manuals, players, as as pam- “[a]ll well quash the subpoenas. to file motion booklets, contracts, phlets, agreements and promised, and following day, CDT detailing other or explain- materials Players’ filed a mo- Association such ing” Quest’s CDT’s or “administration of tion in District California the Northern Major League drug testing pro- Baseball’s District Jef- before United States gram.” warrants also authorized frey White. computer equipment,
the search of
com-
B
devices,
puter storage
on-
and —where an
impracticable
site search would be
—sei-
planned
After
motion to
learning
zure of
of all data
copy
either a
or the
applied on
quash,
April
computer equipment
“[L]aw
itself.
en-
April
and
for warrants to search
personnel
in searching
forcement
trained
Quest’s
and
Long
CDT’s
Beach office
Las
seizing
(designated
computer
data”
Vegas laboratory. Magistrate Judge Jef-
responsible
“computer personnel”) were
frey
issued a search warrant for
Johnson
choosing
course
appropriate
of ac-
jurisdiction,
in his
the Central
office
capture
sought.
tion to
the electronic data
California,
Magistrate
District of
equipment
If seizure of all data or
was
issued a search
Judge Lawrence Leavitt
necessary,
person-
trained
“appropriately
laboratory in
jurisdic-
warrant
his
for the
data,
nel” would
retaining
review
tion,
of Nevada.9 Affidavits
the District
evidence
the warrant
authorized
support
submitted to
warrants noted
designating
for return.
the remainder
sought
already
the information
8, 2004,
subject
grand jury subpoenas
morning April
Special
On the
*7
(the
Agent
Novitzky
agent)
a
was
Jeff
lead case
quash
expected.10
that motion to
person
prop-
...
a
testing
[to]
8. The
at issue in
cases
issue a warrant for
or
records
these
pursuant
bargain-
were
to a
erty
created
collective
that district.”
within or outside
Fed.
ing agreement
Major League
41(b).
between
Base-
R.Crim.P.
Major League
players
ball
Baseball
and the
League
(represented by
Major
Baseball
warrant
10. The affidavit for the search
Association).
Players'
District of
advised the court
Nevada
Quest
quash
to move
the sub-
“intend[ed]
pursuit
9. The
of search warrants
different
Later,
poena.”
language was
crossed out
applicable
proper
districts was
under
fed-
replaced
with a handwritten note:
"A
rule,
magistrate
gives
judge
a
eral
which
4.7.04,”
quash
filed.
motion
has been
fol-
authority
a warrant
"to issue
search for
by Judge
initials.
lowed
Leavitt's
person
property
and seize a
or
located within
district,”
person
"to issue a warrant
for
11. See
Section III.A.2.
infra
properly
person
if
or
outside the district
or
within the
is located
district when
April
expressly
12. The
also
author-
8 warrant
might
but
be
warrant
is issued
move or
"correspondence”
ized the
and "e-
seizure
before
warrant
moved outside the district
Quest's
executed,”
explaining
investigation
detailing
admin-
mails”
or "in an
of do-
program.
drug testing
mestic
istration of the
terrorism or international
terrorism
call,
and eleven other
agents
including
During
federal
Agent
conference
No-
—
Computer Investigative Specialist Agent
vitzky
agents
learned that
had discovered
Joseph Abboud—executed the search war-
hard-copy
document with names and
rant for
Long
CDT’s
Beach office. Al-
identifying
players,
numbers for all MLB
though
personnel
initially coop-
CDT
were
including some of the ten named Baleo
erative, one of CDT’s directors —after
players. Agent Novitzky faxed the docu-
speaking with
Agent
counsel—informed
ment,
“only
which
document
Novitzky that CDT would not assist feder-
eligible for seizure” to which Bancroft had
locating
they
al officers in
the evidence
alluded, to
for preparation
Nedrow
of an-
were authorized to seize and that
other
specimen
search warrant
to seize
agents
should “do what
needed to
samples
Quest
identify-
from
based on the
do.”
that agents might
When informed
ing numbers.13 One of CDT’s directors
forced to
all computer equipment
seize
visibly upset
became
when she noticed the
up
sixty days,
the director again con-
being
document
faxed.
left
prem-
She
counsel,
tacted
exclaiming that such a sei-
ises,
returned,
but
opened
when she
she
zure would
“shut[]
business down.”
locked
presented agents
drawer and
with a
Throughout
morning
early
af- document that
drug testing
contained
re-
ternoon, Agent Novitzky spoke several
sults for the ten
named Baleo
—the
attorney,
times with CDT’s
David Ban-
document previously
only
described as the
croft. Bancroft
Agent Novitzky
asked
hard-copy
seizable
document on site.14
anything
to seize
attempted
while he
p.m.,
At 2:35
finally
CDT director
work out a beneficial solution with the
a computer directory
identified
containing
Attorney’s
United States
Office
San
computer
all of the
sports
files for CDT’s
Later,
Francisco.
agent
Bancroft told the
drug testing programs.
directory,
This
that CDT had
hardcopy
one
document
original
labeled
its
compiler as the
eligible
noon,
for seizure. Around
both
“Tracey” directory, contained numerous
Agent Novitzky and Assistant United
subdirectories and hundreds of files. See-
Attorney
States
Jeff
spoke
Nedrow
this,
ing
Agent Abboud recommended
Bancroft and CDT’s directors via confer-
copying
directory
the entire
for off-site
ence call.
emphasized
Bancroft
analysis, because of the time and
help
provided
CDT
intrusive-
should not be con-
ness involved in searching
strued to
constitute consent
in-
voluminous
and then
directory
formed
on site.
Agent Novitzky
Knowing
Nedrow and
that the war-
required
CDT had two
rant
computers
rely upon
on which
them to
agents
the advice
would find information
a computer analyst
relevant
the advice of
—here
search warrant.
Computer Investigative Specialist Agent
*8
separate group
13.
agents
A
of
property
federal
had
premised
motions for return of
were
simultaneously
separate
a
executed
search
government’s
during
on the
conduct
that
Quest’s
Vegas laboratory,
warrant at
Las
but
search.
specimens
were unable to locate the
seized,
specimens
because the
were identi-
later, agents
14.
billing
Some time
a
located
by
only. Agents
fied
number
used the master
Long
document for CDT's off-site
Beach stor-
apply
list from CDT to
a
for
third search
age
agents
locker. After
a
obtained
fourth
Quest
warrant. The new warrant
for
was
warrant, which allowed them to search and
by Judge
authorized
Leavitt in the District of
locker,
seize evidence in the
a CDT director
p.m.
evening,
Nevada at 6
agents
agreed
open
compartment
the
for
the
players’
seized the
spe-
then-identifiable Baleo
agents.
night.
cimens later that
opinion
same
This
CDT,
focuses on the
of
search
because the
c
the
agents copied
direc-
Joseph Abboud —
for later
copy
removed the
review
tory and
Jose,
Upon returning to his
office
San
offices.
California, Agent
briefly
Novitzky
re-
of the Tracey
viewed the contents
Directo-
facility
of
conclud-
the CDT
The search
ry,
identifying five subdirectories
related
after 5
before he left
shortly
p.m., but
ed
directories,
Agent
MLB. Within these
Novitzky
Agent
reviewed
premises,
the
Novitzky
by
identified files authorized
the evidence seized
with
directors
CDT
magistrate
seizure,
including
for
judges
documents seized
during the search. The
positive drug
the
file of
test
re-
master
a
master
list of
twenty-five-page
included
26, 2004,
Players’
April
sults.16 On
the
during the 2003
all MLB
tested
Association filed motions
Federal
under
list of
thirty-four-page
posi-
and a
season
Rule of
41(g)17
Procedure
seek-
Criminal
testing
eight
for
of the
drug
results
tive
ing
property
return
the
of
seized.
intermingled
Baleo players,
named
ten
twenty-six
5,May
using
for
other
On
information culled from
positive
results
Directory,
the
Tracey
government ap-
the
players.15
warrants,
tory
April
pro-
upon the
Copies of all
documents were
based
7 search
15.
by
April
CDT
a
we
vided to
the
contention
address in this consolidated
appeal.
suggests
pursuit
Insofar
as the dissent
government applied
April
for
16. On
April
of the
30 search warrant evidences bad
the Northern District
fifth search warrant in
by
faith
and an
harassment
California, asking for authorization to
of
attempt
possibly
to evade a
adverse order on
"regarding drug
all
data
"seize”
electronic
property
of
in the
motion for return
filed
drug
specimen
specimens,
testing,
identifica-
California,
of
we decline to
Central District
numbers,
numbers,
athlete identification
tion
speculate.
We have no reason to believe
results,
drug
...
[CDT]
test
retained
government sought
April
30 warrant
testing Major League
drug
pertaining to
of
harassment,
purposes
of
rather than
players,
copy
located within
of
Baseball
avoid
search
that would
an additional
of CDT
currently
computer sub-directory
in the
CDT
have
from authorization to seize
followed
Revenue
possession
[Internal
of
Service
original copy
Since
in the Central District.
California,
Jose,
("IRS”)
San
] in
identified
evidentiary
no
court has ever held an
district
'Tracey' sub-directory, bearing the follow-
hearing,
government complied with
and the
(1)
ing computer
group
file
names:
'MAJOR
to secure
of the criminal rules
commands
(3)
(2)
GROUP'
'MLB BILLING’
LEAGUE
magistrate judges in
search warrants from
(4)
Drug
'MLB
'MLB
Subcommittee'
Follow
located,
property
whose
districts
”
(5)
copy
IOC.'
UP'
'MLB
Because this
showing
probable
upon
based
cause that
Directory
Tracey
was in the hands
the IRS
found,
incriminating
evidence would be
Jose,
San
in the Northern District of Cali-
in
fornia,
signs
support
see no
bad faith
the dis-
government sought
the search
contrary
trict courts’
conclusion.
Magistrate Judge
warrant
district.
Lloyd approved
Howard
the warrant. The
41(g) reads:
17.Fed.R.Crim.P.
CDT,
notify
presumably
government did not
person ag-
Property.
Return
A
possession
Motion To
already
IRS
in its
because the
had
grieved by
seizure
an unlawful search and
copy
directory containing
of the entire
proper-
property
deprivation
materials.
relevant
ty
property’s
for the
return.
move
subsequently
Players’
Association
filed
where
motion must be filed in the district
41(g)
Fed.R.Crim.P.
motion
Northern
court must
property
was seized. The
seeking
any
return of
District
California
neces-
evidence on
factual issue
receive
pursuant
April
taken
*9
warrant,
9, 2004,
sary
grants
it
to decide the motion.
If
August
Judge
on
search
and
motion,
property
government
the court must return the
granted
Illston
this motion.
movant,
may impose reasonable
dispute
to the
but
appeal the
and does not
did not
order
Instead,
property
protect access to the
government
conditions to
now.
asserts that
proceedings.
later
right
Tracey
and its use in
it retains the
to review
Direc-
v.
all
United States Tamu
plied for new search warrants to seize
dures set forth in
ra,
(9th
specimens
relating
Cir.1982),”
and records
to the
On Mahan granted the 41(g) Fed.R.Crim.P. motion subjects These orders are the two brought by Players’ Association in the the appeals consolidated here. District of Nevada and gov- ordered the specimens ernment to return all D Quest from and all notes and memoranda compiled agents appeal who reviewed the evi- The third grand jury concerns dence, pertaining other than those subpoenas Quest issued to and CDT on players 6, 2004, ten original May Baleo named which were to be returned search warrant.19 findings— He made June 2004. subpoenas These reached conducting without an evidentiary hear- all specimens positive and records of ster- “[tjhe ing government callously drug dis- oid tests for more than one hundred —that regarded players’ the affected players, simply constitu- MLB the results for rights” tional government ten Baleo named in the earlier unreasonably refused proce- subpoenas.21 “to follow the pur- This evidence was also supra 18. See note 9. subpoenas 21.These were not the earliest ones investigation. subpoe- issued in the The first 16, 2004, January nas dated to and mandated stay 19. The moved for a of this provision drug testing of all MLB records. order because the evidence was otherwise 3, 2004, On March obtained lawfully possession pursuant in its to the sub- subpoenas narrower for eleven Balco-con- poena May Mahan denied 22, 2004, players. April gov- nected On 1, 2004, the motion on November based on withdrawing ernment sent a letter to CDT government's subpoena failure to raise the letter, January subpoenas. In the same argument original hearing. at the 3, 2004, reduced the March ten, eleven, subpoenas players. Baleo inapplicability 20. We discuss the of this war- May At the time the obtained the exception rant in Section III.A.4. See infra subpoenas, only outstanding subpoenas note 39. sought were those of March which
925
lí
May 5 search
government’s
in the
sued
sought these
government
warrants.
granting
Before we review
orders
on
subpoenas
warrants
later search
41(g)
the Fed.R.Crim.P.
motions
did
April 8 seizures
that the
ground
District of California and
Dis-
Central
for the
information needed
all
provide
Nevada,
juris-
must decide two
trict of
investigation.22
Players’
As-
dictional issues: whether
May
subpoe-
6
with the
Quest complied
challenge
standing
has
sociation
with hun-
na,
government
providing
Quest
from
search and seizure
evidence
documents,
gov-
but
pages
dreds
timely ap-
government
and whether the
compliance
to defer CDT’s
agreed
ernment
order to return the
pealed Judge Cooper’s
warrant
of the search
pending resolution
from
in the Central
materials seized
CDT
however,
31, 2004,
August
litigation. On
District California.23
indefinite de-
revoked the
comply
with
CDT
ferral and instructed
A
14, 2004. The
by September
subpoena
filed a motion
Association
Players’
contends that the
13,
September
subpoenas
quash
Players’
standing
Association lacks
to file
2004.
motion,
it
41(g)
the Fed.R.Crim.P.
because
access, control,
ownership over
lacked
2004,
Judge Illston
after
In December
specimens seized from
the records and
no
motion but took
argument on the
heard
Furthermore,
Quest.
argues
govern-
found that
testimony, she
its in
Players’
Association
base
unreasonable and con-
conduct was
ment’s
(the
specimens
urine
property
terest in the
filed an
She then
stituted harassment.
results)
privacy
on the
interests of
and test
which the
quashing
subpoenas,
order
players.24
the individual
timely appealed.
421,
nois,
128, 133-34, 99 S.Ct.
439 U.S.
players with Baleo connec-
ten
records of
(1978) (refusing
stand
to extend
tions.
L.Ed.2d 387
ing
party
to a
who was not
"victim”
Recognizing
the documents
Taketa,
search);
States v.
see also United
April
pursuant
to the
from CDT
665,
(9th
1991) (following
669-70
Cir.
F.2d
might
included all
not have
search warrant
Rakas,
99 S.Ct.
439 U.S.
(even
investigation
relevant to the
documents
holding
did not have stand
that a defendant
players,
regard
see
to Balco-related
infra
ing
challenge
a search of another defen
37),
deciding
positive test
note
office).
person
aggrieved
"A
who
dant’s
players beyond the
MLB
results uncovered for
only through the
illegal
and seizure
search
be valuable
Baleo connections could
ten with
damaging
secured
evidence
introduction
investigation,
asked
premises
prop
person's
or
a search of
third
May
warrant on
6 in the Central
a broader
erty
Fourth Amend
not had
of his
has
of California.
District
Rakas,
infringed.”
U.S. at
rights
ment
Players'
decide whether the
23. We need not
added).
(emphasis
Because
B
(“Local
under C.D. Cal. Local R. 7-18
Players’ Association,
7-18”).
part,
for its
Rule
Judge Cooper recognized
contends that
failed
analyze
this when she chose to
the motion
appeal
timely
manner Judge Cooper’s under Local
analysis
Rule 7-18. This
order for the return of
property.
proper,
order
for Local
permits par-
Rule 7-18
”
States,’
of the United
Marshall v.
“Motion
Reconsideration”
‘laws
bring a
ty to
*12
(9th Cir.1995)
Gates,
a
showing
a
of
(quoting
“manifest
The dissent to discern whether an inconsis- order such motions, correctly to such and applies 60(b) tency exists. Rule reads: Pro- Rules of Civil notes that the “Federal Motions for provide do not for cedure upon are On motion such terms as In- at 19858. Reconsideration.’” Dissent may a just, party the court relieve a or stead, motions of local “such are creatures legal representative from a final party’s then practice.” or Id. The dissent rule order, or for the judgment, proceeding a conflict out a caveat: points “Where (1) mistake, reasons: inadver- following two, rules must arises between federal (2) tence, or surprise, neglect; excusable omitted). (citations From Id. prevail.” newly discovered evidence which due more the dissent draws a far point, diligence could not have discovered been sweeping purposes conclusion: “For the for in time to move a new trial under post-judg- a local appeal, when rule based (3) (whether 59(b); Rule fraud hereto- made, motion for is ment reconsideration extrinsic), fore denominated intrinsic or (1) it a motion to construe either as we misrepresentation, or other misconduct a under Rule judgment alter or amend (4) party; judgment an adverse is 60(b) 59(e) (2) for a motion under or filed (5) void; judgment satis- has been judgment.” from Dissent at 19859 relief released, fied, or discharged, prior or N. (citing Am. & Erectors v. Ironworks judgment upon which it is based has Corp., 248 F.3d 898-99 Am. Constr. vacated, reversed or or been otherwise (9th Cir.2001)). So a conclusion is broad longer equitable judgment no that the not justified. Am. Ironworks does not prospective application; have or should a local mention rule its discussion even (6) any justifying other reason relief 59(e) 60(b). or The case of Rule Rule operation judgment. from the ap- addresses which federal rule to simply 60(b). contrast, Local Fed.R.Civ.P. already treated as a ply to motion provides: 7-18 Rule under a local motion reconsideration rule. deci- A motion for reconsideration of the only on may motion made sion on problematically,
Even more the dissent (a) grounds of a material difference before assum- places the cart the horse from that presented in fact or law inconsistency the federal ing an between that in the before such decision federal Court stating and local rules before which could hastily diligence exercise of reasonable applies.25 decline so rule even We mov- party local are have been known to the dispose of a rule. “Local rules 59(e) ("Motion Judgment. analysis specific to Alter or Amend 25. An initial of the local necessary to decide rules is in order judgment federal Any to alter amend a motion or 59(e) and the rules Rule whether conflict. entry days no later after shall be filed than 10 60(b) greatly, differ a local rule that Rule (citing judgment.”); see at 927-28 infra appears well be inconsistent with one 60(b)). Fed.R.Civ.P. with the other. See Fed.R.Civ.P. consistent ing obligation for reconsideration at the time of under an to construe local rules (b) decision, emergence or so that do not conflict with federal such rules, change material of law we have ingenuity new facts or a exercised our Marshall, decision, occurring 725.27 doing after the time of such so.” F.3d at (c) showing manifest failure correctly that the district Satisfied court presented consider material facts 7- analyzed the motion under Local Rule such decision. Court before timeliness, turn to its order *13 added). Local R. (emphasis C.D. Cal. 7-18 it tolled to file period decide whether the government’s clearly un- motion falls Local ex- appeal. an Rule 7-18 does not because, 7-18(c), Local Rule as the der pressly a time frame in to file a set which out, points “as- government dissent the However, the motion for reconsideration. ignored the court had evi- sert[ed] been read to for a “provid[e] rule has arguments.” at dence Dissent time reasonable within which to seek re- contrast, In the not fall within motion does Erath, consideration.” Meredith v. 60(b), government Rule for the did not (C.D.Cal.) J.) 1729626, *1 WL (Cooper, relief request operation “from the (defining period filing the relevant for a judgment” simply expressly but asked “Motion for Reconsideration” under then- modify court to sever- “reconsider and 7-16, Local R. C.D. Cal. the same rule now aspects of inaccurately al this order which 7-18). C.D. Local R. Mere- codified as In government’s characterize actions.”26 dith, district judge Judge same —the requested Cooper appealed neither Rule whose order is here— 60(b) relief nor for grounds delay filing cited the such found that eleven-month relief, “mistake, which include inadver- reconsideration motion for was unreason- tence, surprise, neglect,” able, making untimely or excusable the motion under “newly evidence,” contrast, ... Judge discovered “fraud Local 7-18. Id. In Rule misrepresentation, Cooper or other misconduct of did not conclude two- party, binding delay change an adverse month the motion here unrea- was ‘any of the judgment, government’s nature other rea- sonable and did not view the justifying operation of untimely (although son relief from the motion in this case as ” 60(b)(l)-(6). judgment.’ Fed.R.Civ.P. advised her that it had frame”). inconsistency absence of a clear of the normal filed “outside time rules, the local agree between and federal we will with her We determination that apply a general delay federal rule where a shorter here was One reasonable. specific directly point. local rule is As factor supporting its “reasonableness” is out, ... aptly points the dissent are mov- “[w]e neither nor the reason, prior day hearing.” 26. For the same is not one at motion 44 F.3d judgment” to "alter or amend the under Fed. "engage[d] interpreta- court 724. The in an 59(e). R.Civ.P. produce consistency,” id. at tion in order 725, and concluded that rule federal possibility 27. Marshall does not hold that unconditionally require "d[id] district conflict between local and federal rules accept up affidavits set for court to to the date by ignoring should be avoided the local rule. hearing summary judg- on the motion for Indeed, in Marshall the court found the local Marshall re- ment.” Id. avoided conflict applicable, although ap- rule “the local rule fusing interpret way the federal rule in peared] to be inconsistent with federal render invalid Har- would the local rule. governing summary judgment rule to the ex- monizing federal local often rules submitting party that it tent bars a from affi- intact. leave both opposition summary judgment davits 2, has an the order until November movant individual interest ants received for the he circumstances, do need wants re- these we 2004. Given 3) turned; whether movant would Judge Cooper’s decision not believe injured irreparably by denying return of under impermissible was hear the motion 4) property; and whether the mov- period time” un- permitted the “reasonable adequate remedy ant has an at law for Meredith, 2001 der Rule 7-18. See Local of his grievance. the redress 1729626, *1. at WL Id. at 325. Both district courts here found Thus, motion are satisfied that the we that all four in favor weighed factors timely filed. for reconsideration jurisdiction. equitable denied motion on Feb- Cooper Because the now concedes 9, 2005, tolling ruary deadline parties adequate that the have no remedy appeal April govern- until 2005. The law, to discuss the need first appeal on March ment filed its three Ramsden factors. fil- days *14 the thirty remaining before that ing timely The nature of deadline. A appeal, and the motion for reconsidera- of Interestingly, the Players’ Association it, jurisdiction gives tion us to con- before challenge validity of the does the war- order.28 original sider the authorizing April rants the 8 searches. Thus, probable we assume that cause ex- Ill support isted to of the issuance search that government The contends for the warrants be seized Judge Cooper improper Mahan places from the named each warrant. to hear ly equitable discretion exercised Nevertheless, the Players’ Association de- grant respective the Fed.R.Crim.P. of grant fends the its motions for return of 41(g) motions29 property, arguing may equi court A district exercise disregard acted in callous of the Fourth jurisdiction table to hear motions such rights Players’ Amendment of the Associa- four out in analyzing after factors set tion, CDT, players, MLB offering (9th States, 2 v. United F.3d 322 Ramsden arguments that end. farrago a of We Cir.1993). must Specifically, the court each in turn. consider consider 1
1)
displayed
the Government
a
whether
Players’
first
disregard
callous
the constitutional
Association
ar
2)
movant;
search
rights
government sought
gues
of the
whether
position,
jurisdiction,
28.
takes a
at
dismissal —not denial on
mer-
The dissent
curious
arguing
once
that "the
court did not
appropriate.
district
its—is
original
jurisdiction
have
to consider the
mo-
stating
at the same time
tion” and
We review a district court’s decision to
29.
denial of
recon-
district court’s
the motion for
equitable jurisdiction
under Fed.
exercise
following
three-page
a
discussion
sideration —
41(g)
of
R.Crim.P.
for abuse
discretion.
"proper.”
merits of the motion —was
Ramsden,
Cir.1993).
322,
(9th
2 F.3d
324
We
jurisdiction,
In the absence of
a discussion
interpretation
district
review the
court's
inappropriate.
Firestone Tire
merits is
See
41(g)
Fed.R.Crim.P.
de novo.
Id.
lawful-
368, 379,
Risjord,
& Rubber Co. v.
449 U.S.
is also reviewed
ness of a search and seizure
(1981) (noting
S.Ct.
jury]
...
right
every
has the
to
man’s
by
strated
records
this case.
evidence,”
Calandra,
v.
United States
414
338, 345,
613,
U.S.
Unfortunately,
94 S.Ct.
932
3 tion the loss of risked deleted documents that would be original visible Players’ Association next ar drives. gues that the used the search
warrants for the records of
ten
named
see no
pre-
We
evidence
bad faith or
players
pretext
Baleo
aas
to seize the
text here.
players.
sup
records
other MLB
In
port,
cite United States v. Rettig, 589
(9th Cir.1978),
F.2d 418
police
where the
Nor does the seizure of intermin
marijuana
obtained a warrant
para
gled documents demonstrate “a callous
phernalia
failing
day
after
earlier to ob
disregard for
rights
the constitutional
tain a warrant to search for evidence of a
Ramsden,
the movant.”
with results for other MLB players. Be-
Beusch,
In United States v.
ments
an on-
search,
practical
perform
to
that it is
accordance
of a further
copy make an on-site
search or
in the American
site
procedures set forth
694 F.2d
violations.
suggested
avoid constitutional
34. The Tamura
court
of Pre-
Model Code
American Law Institute’s
595-96.
guide agents to
Arraignment
could
Procedure
data within
reasonable amount of
search completion.
preclude
It did not
time,
computer equipment
then the
assisting
others from
computer person-
storage
will
devices
be seized and trans-
nel.36 The
provided by
sort of assistance
ported
an appropriate
to
law enforce- Agent Novitzky, a nonspecialized law en-
laboratory
ment
for review.
officer,
permissible
forcement
under
executed the warrant un-
the search warrant
and was reasonable
guidance
Agent
der
Abboud' —a
under the Fourth Amendment.
Computer
Investigative Specialist,35 and
Moreover,
agents
did not remove
took care to avoid unreasonable seizures.
files without a relation to the Baleo investi
so,
Players’
Even
Association con-
gation and did not seize entire categories
tends that
breached the
employees
documents to coerce
into co
protocol,
warrant’s
Agent
because
Novitz-
operation,
in Tamura.
agents
as did the
ky opened and viewed the contents of the
See
Agent Abboud to search alone. Under for off-site review stemmed not from disre view, only Agent qualified Abboud as gard privacy rights, sensitivity but from “appropriately personnel” trained to the ongoing disruption caused no agent authority other had open to search to CDT —an innocent third party However, computer view CDT data. underlying investigation. agents plain language of the search warrant permitted original CDT retain the Tra does not exclude the assistance of other cey Directory, though they even later ex law enforcement especially for officers — (such plained that may this decision involving pre tasks have non-digital work as site). seeking vented them from cooperation persons accessing from deleted only required temporary The warrant that computer files that could not be trans personnel possibility assess the of on by duplication.37 site ferred agents took requirements 35. We note that key these are selecting the "Enter” after the desired the mandates of the Fourth Amendment. If file. specified the warrant had not the need for that, recognize We had CDT stored test re- computer analysts, police would have been Management sults in a Relational Database experts help "free to hire such them con- System requiring specialized expertise to ex- praise- duct a search ... and it well be data, only agent specifically tract trained worthy for them to do so.... But the Fourth using system might such a be considered Hill, require Amendment does not it.” However, "appropriately trained.” we do not F.Supp.2d (citing at 1088 Tamura and other interpret require only Comput- warrant suggest special- cases that the involvement of Investigative Specialists perform er ele- (citations omitted). personnel) ized mentary spreadsheet tasks such as scan a warrant, persons par- named in a search 36. We do not believe that the warrant can be end, when, ticularly spreadsheets fairly require computer personnel read to would still have been seized. The search war- aspects execute all of the search. For exam- employed rant form in these cases authorized ple, computer the more basic recoveries could by "Any Special Agent[s] a search with the easily completed by nonspecialized law United States Internal Revenue Service or officers, considering enforcement officer,” any other authorized and was not type simple spreadsheets. of files at issue were only by computer restricted to searches inves- today's anyone world with the most rudi- tigative specialists. mentary computer qualifies "appro- skills priately trained” opening 37.Recognizing when it comes to the documents viewing spreadsheets basic April may on a modern seized on not have included all computer: presumably any computer investigation, user documents Agent relevant to the *19 press can double-click a Novitzky selected document or May asked for a broader warrant on clearly a limited set of relevant disks government documents might not copy Tracey Directory, and a which know to miss. The had no players specifically included information on reason to “key confine its search to words” named in the search warrant. Further such as the names of the baseball players. more, just eight days after the search war Such a limited easily search could have rant, agents provided copies of all documents, overlooked relevant as it would again, seized documents CDT. Here have in the case Quest. of the seizures at agents regard demonstrated the careful There, testing results by were not saved in Tamura38 absent key They word at all. were labeled with numbers, identification whose connection reject gov- We the dissent’s view that specific players could not be found with- ernment officials should limit their com- in the document or at the facility, but were puter key searches to suggested by words linked a document kept a storage party. Criticizing a searched the govern- locker located at a different address. See “cop[ying] directory” ment for the entire supra Section I.B, notes 13-14 and accom- “copying only rather than the subdirecto- panying text. pertained Major ries that League Base-
ball,”
suggests
the dissent
govern-
required
was not
point
ment should have trusted CDT to
out believe,
assume,
and had no reason to
the relevant files. Dissent at 19839. The
all relevant
Tracey
documents
Di-
explains
approach
dissent
that this
would rectory would be listed under the names of
have
allowed the
to select the
players
the baseball
in the warrant. The
relevant
“Dr.
Joseph
files on-site:
Jean
of government’s
copy
decision to
the entire
CDT later stated in an
affidavit
directory represented a conscientious ef-
directory
easily
by key
searched
word
fort to seek out all the
evidence covered
provided
and would have
the test informa-
the search warrant. We do not discern
period
tion about the ten
in a short
bad faith or
disregard” simply
“callous
be-
of time.” Id.
determined,
cause the agents
ini-
after an
review,
tial
that certain
duty
rely
intermingled
had no
files
site,
CDT to illuminate the
needed to be
permit-
files seizable under
reviewed off
as
parties,
applicable
the warrant. Like most searched
ted under our
precedents and
CDT had an incentive to
giving
avoid
over
itself.39
warrant
lawfully
5 in the Central District
California.
He
also
search
deleted
...
material
Jack,
explained
Special Agent
that "IRS
Jeff
[items
seizure of
other than hard drives
Computer Investigative Specialist
gave
...
was reasonable
disks]
because it allowed
specific examples
agents
preserve
me
deleted
computer system
files or tem-
porary
printing
computer analysts
files created when
file
it existed for the
... with-
files.”).
simple
taking
losing
cannot
seen
be[]
or retrieved from a
out
risk
copy
computer sub-directory,
of a
but
tools,
Tamura,
using
agents
retrievable
forensic
if allowed to
In
retained master vol
computer system.”
examine the entire
Had
umes
knew held information not covered
government engaged
in a "wholesale sei-
the search warrant "for at least six months
material,
possibly
locating
zure” of all
relevant
as in
after
the relevant documents." Ta
Tamura,
mura,
contrast,
they surely would have seized the
Emuakpor, government's argu- 2000 WL *8 39. We do not reach the (“|T]he agents searching exception were "plain not confined to ment that the view” requirement justified the files on the hard drive and disks but could warrant seizure of the *20 936 represent Players’ Association exists the interests, properly courts the district such considerations, we con- of these light In weighed in that this factor favor found properly con-
clude jurisdiction. equitable privacy inter- respected and sidered intrusiveness, ests, law enforcement and C question by by the searches posed needs Tracey Directory of the removing copy satisfied The district courts also found (not only limited taking original) (likelihood of third Ramsden factor containing rele- and documents diskettes if not irreparable injury the evidence were files, seizing these information. vant returned). Players’ Association As did not show “callous dis- notes, drug public positive release of rights the constitutional regard for damage testing irreparably evidence could Ramsden, movant,” but F.3d at if players, careers of the affected even to the displayed attentiveness both instead actually positive results were procedures and precautionary warrant’s by illegal use. Based on caused steroid unnecessary avoiding importance of agree that the third factor danger, we operations. disruption of business CDT’s jurisdic- weighs equitable in favor of also reasons, conclude that the For these tion. (the analysis of the Ramsden prong first weighs disregard”) of “callous existence D invocation of the district court’s against conclude that the district Although we jurisdiction over the Fed. equitable finding disregard callous courts erred in motions. The district 41(g) R.Crim.P. rights, the three other Fourth Amendment contrary were courts’ conclusions weigh in fa- equitable jurisdiction factors faulty conclusions law based hearing Players’ vor of motions They of fact. can- unsupported assertions Ramsden, 2 See Association CDT. appellate review. survive factors (holding F.3d at 326 three jurisdiction justified equitable exercise of B motion). 41(g) As to hear Fed.R.Crim.P. of the four As to the second such, say that either district we cannot (the individual Ramsden factors movants’ hear motion court’s initial choice to seized), Play interests in the evidence an abuse of discretion. constituted argues Association that its interests ers’ mirror those of its members. property IV agree possess the members We of the drug We turn now to merits strong privacy interests in both their by Judge Coo rulings substantive issued specimens. and the actual See test results (9th ordered return per Mahan that Sherry, v. 91 F.3d Roe Cir.1996) directly than evidence of all other (recognizing individual’s players named in the related to the ten “strong protecting interest in the confiden status”). Because search warrants. tiality of HIV [one’s] evidence, deal the Government's contentions intermingled because the evidence scope 'plain search warrant. fell within the admissible under the were Beusch, ("Because F.2d 871 we hold See require- exception to the warrant view' were covered that the items seized ment.”). warrant, unnecessary we find it terms of
937 A that property return of should only follow a particularly egregious violation: “The respect property during taken With issue is whether the Government’s conduct warrants, 41(g) pro- search Fed.R.Crim.P. sufficiently reprehensible in this case who person deprived that a is vides Ramsden, to warrant this sanction.” 2 F.3d may move for its return. When property Ramsden, at In 327. we im- refused to granted, property such a motion is pose this extreme police sanction on who moving question must be returned had time to obtain warrant but made no “may impose a court party, but reasonable effort “simply to do so and chose not to protect proper- conditions access comply obligations with[their] under the ty proceedings.” use in later Id. its Fourth Amendment.” Id. at 327. Although the rule does not set a itself determining property standard for when governing precedent Our sup- offers no to a an moving party, should be returned port for a full intermingled return of the advisory explains committee note Indeed, evidence. both the Beusch and “reasonableness under all of the circum- Tamura courts underscored the need for stances must be the test.” Fed.R.Crim.P. Thus, effective criminal law enforcement. advisory 41 committee’s note. the Beusch court resolved: “As an long as search, item repeatedly appears, that a at the time of
We have held Fed. 41(g) reasonably motion denied contain evidence properly R.Crim.P. is related to the search, government’s purposes if need for the property “the there is no rea- as evidence continues.” v. United States son—absent some other Fourth Amend- (9th Cir.1996) Fitzen, 80 F.3d 388 suppress ment violation—to it.” 596 F.2d (internal omitted); quotation marks Unit- at 877. Even the Tamura court—which Mills, (9th ed v. 991 F.2d States agents determined that the unambiguously Cir.1993) (same). advisory committee flouted the limits of the search warrant— “If explains: note the United States has a say, concluded: although “[W]e cannot we property investigation need for the case, find it a close the officers so proper- its retention of the prosecution, authority abused the warrant’s ty generally reasonable.” Fed. otherwise valid warrant was transformed advisory R.Crim.P. committee’s note. one, general thereby requiring into a all Tamura, suppressed.” fruits to be longer It is when the no F.2d at 597. property a pre- needs the as evidence that arises, sumption giving right the owner a Tamura, In did not Fitzen,
to have returned. 80 seek to use evidence at trial that fell out- Here, at F.3d al- Therefore, scope side the of the warrant. ready provided copies has of all documents the court found return of prop- the seized seized, remaining and it states that erty inappropriate, though even some evi- investigation evidence is essential to its unlawfully had dence been taken. prosecution of the distribution of ille- today, cases before us has gal legitimate steroids. This law enforce- made clear that desires to use purpose ment makes return of the inter- information related to the ten named Baleo mingled improper, evidence as the files players other who tested legally were seized under the search war- positive who therefore have be- —and precedent. rant and our targets expanded grand jury come of an Moreover, agents investigation intermingled even cases where a result of —as evidence, seized too much we have noted information we have determined was that the sei- necessary to ensure view is the warrant. While lawfully under computer re- records re- intermingled information still agree that some zure dupli- least in government,
tained
mains reasonable.
scope of the
cate,
outside the
may fall
off-site
urged
court
The Tamura
*22
warrant,
of the
not
a return
we do
believe
by magistrate,
in
conducted
a
review be
evidence
lawfully
intermingled
party
to a
giving
to avoid
the task
order
wrong.40
that
properly remedies
retaining too much.41
an interest
in
with
in
Thus,
grant-
courts erred
the district
government’s argu-
accept
cannot
We
motions and
41(g)
ing the Fed.R.Crim.P.
simply
it
all evidence
ment that
retain
evi-
to return all
ordering
government
Players’
it assured the
Association
because
Quest
all
CDT and
dence seized from
—and
faith)
(without
that
signs
and CDT
bad
reviewed the
agents
related notes
who
In the
intend to use all the files.
did not
not
to the ten
evidence—that did
relate
seizure of
case of a lawful and reasonable
expressly named
players
Baleo
records for off-site
intermingled computer
search warrants.
review,
bar,
precedents
our
and the
as
general
reasonableness mandate
B
require
supervi-
Fourth Amendment
gov
persuaded
areWe
magistrate.
a
It is not reasonable
sion of
intermingled evidence
seizure of
ernment’s
an inde-
to allow the
seize
was lawful and reason
for off-site review
terminately
array
computer
bounded
able,
requiring
view the two orders
and we
for
data
later to set its own standards
of all
related to
return
retention thereof.42
review and
unjustified
named
specifically
not
as both
prag-
a
proposed
It is true that Tamura
However,
improper.
approach,
matic
and not a constitutional
duty
adequate
its
yet
comply
has
recognize that some courts
rule. We
sug
Tamura offered a
off-site review.
questioned
proce-
by a
other circuits have
procedure for review
neutral
gested
dures advised
Tamura. One district
magistrate, and we conclude that such re-
way
apply
significant
Tamura to
in a
40.
of the two district
courts
The orders
require
intermingled
oth-
would
the return of all evidence
seizures
context of lawful
players.
named
er than that related to the ten
computer data.
why
in detail
this view
We have described
way
misinterprets Tamura in a
that would in-
government’s
not
al-
42.We
do
belabor
validate lawful and reasonable searches and
guide-
leged
to follow its own internal
failure
hamper
public in-
It would also
seizures.
note that
the U.S.
lines. The dissent
takes
investiga-
comprehensive
terest
in full and
Attorney's
war-
manual states "that a search
the course of the
tions as leads unfold in
normally
be used to obtain
rant should
not
grand jury’s inquiries.
materials such as treatment
rec-
confidential
ords,”
Department
of Justice’s
necessary
magistrate always
It is not
that a
guidelines
warrant
disfavor use of
search
give
authorization
seizures of in-
advance
for
subpoena would suffice. See Dissent
where a
Here,
termingled
United
evidence.
guidelines is
at 19866. The existence of those
(9th Cir.2000),
Hay,
we
v.
disks the warrant ment seizures and retention of intermin- computer authorizes the seizure of rec evidence, gled computer agree. On we ords.” Id. Another court, referencing also hand, other attempts dissent to limit Tamura, noted that in the com modern “ computer searches and seizures to un- puter ‘suggestion’ by panel context a a of degree reasonable neither warranted 20-plus year the Ninth in a Circuit old —one by nor precedent. Constitution our United States v. persuasive.” case is not The dissent would affirm the district Kaufman, 2005 WL at *4 n. 3 (D.Kan.). toto, courts’ 41(g) Fed.R.Crim.P. orders in Tamura relying upon yet failing recog- to Like these district courts from other nize the continued relevance of Beusch. circuits, recognize computer This approach, extreme which would forbid era new complexity adds to the test of data, intermingled seizure of would reasonableness under the Fourth Amend- compel agents, law enforcement when un- reason, Precisely ment. for this we view expectedly intermingled confronted with Tamura especially important data, computer give up the search and computer Although context. indeed writ- They leave. could return to the scene the Tamura ing ago, over two decades if equipped with a new warrant authorizing appreciated court the same dual—and specific intermingled removal of the evi- conflicting sometimes of mini- —interests dence, repeating procedure this until all mizing the intrusiveness of searches and intermingled relevant evidence were ob- containing the breadth of seizures. The many tained. After such warrants and Tamura court stated that “large-scale re- intrusions, intermingled evidence justified moval of material” can be “where Moreover, might longer well no be intact. sorting on-site is infeasible and no other exists,” Tamura, rather than limit the practical alternative intrusiveness of a F.2d at but search of magis- intermingled also advised that and seizure com- puter by allowing government trate should oversee the off-site review of data mistakenly scrutiny, easily separable. 43. The dissent concludes this to be In a seizure procedure plethora containing allows the establish of of documents rele- required interspersed "what the Fourth Amendment it to vant material with irrelevant documents, probable predictable do in the first: instance: it is docu- [that] some ments, property.” although legitimately cause exists to seize and search seized for off-site review, Tamura point separable Dissent at 19894. The out to be turn without procedure intermingled changing is to ensure that doc- docu- the nature the relevant uments, legitimately of the Tamura purpose procedure seized for off-site review ments. The cause, supported probable process, separation under a warrant the off-site is monitor out, upon probable do not contain documents that turn not to establish cause. warrant, review, may retain and off-site the whole for remove items; magnify unneces- must be re- approach would such all others dissent’s use by computer imposed sarily the burdens entity person turned to or searched.46 warrants, both on the search always free to seek searched, no corre- parties and on the authorization, through judicial either sub- of the constitu- light sponding benefit or district court sequent search warrants in Fourth linchpin tional reasonableness magistrate’s authorization on review of jurisprudence. Amendment rulings, justify expansion investi- showing item’s gation upon proper that, gov while the conclude We intermingled data for criminal behavior relevancy suspected seize ernment to minimize intrusiveness of off-site review during uncovered review the evidence search, may not retain computer initially seized. proper objections the evidence after use case, proper In we conclude that the raised, magistrate subse are unless Fed.R.Crim.P. remedy is to remand these and filters the evidence quently reviews 41(g) appropriate district matters must adhere to magistrate off-site.44 The courts, mate- purpose sealing for the manner. precedent our a balanced *24 the search warrants and rials seized under review, apply magistrate should her Beusch, for ex- transferring magistrate them to a which precedent, including our single ledgers or permits the seizure and isolation of the files peditious review intermingled data. In the con files with may legally retain. government files, we believe that most computer text of pared can down consid
seized materials be V erably, files—spreadsheets but that certain pages, example—may for be a few Finally, govern we consider the retained in whole.45 Illston’s order appeal ment’s May quashing subpoenas, 6 which magistrate
After the determines sought drug testing specimens records and items fall within the search which sealed mandatory, consider- government little to nor but offers relevant 44. We note that the has magistrate magis- a to determine what by following precaution. A ations for lose reasonably re- evidence the can whatever trate will allocate intermingled a lawful seizure of property may legitimately retain under the tain after rely digital agents own data. warrant. Yet if on their judgment, they may on the side of retain- err ing err outside the search warrant or on permit govern items approach 46.This does not "wholesale,” returning precedents evidence our the side of computer files ment to seize permit retain. would them to to limit the documents without effort suggest Nothing we lifts the Fourth seized. magistrate searches analysis, may con- Amendment's bar on "unreasonable In this relevant, 1) Like among U.S. Const. amend. IV. other factors: and seizures.” sider courts, point we out the search the Beusch and Tamura whether evidence mentioned in parameters search and separated evi- reasonable warrant can be from unrelated files, complex moving seizure in the context of intermin by copying or but without dence file, documents, 2) Case-by-case gled evaluation remains creating whether the files. new essential, Founding pa- Fathers printed, typical because our if would fill more than Beusch), 3) (of general prohibition unreasonable ledger chose a per sort whether searches; they rigid portions did not create rule of the docu- excision of the unrelated permissive origi- prove and at could at times too would distort the character of ment prove too strict. list exhaustive times nal document. This is neither positive premises, who tested and to examine for all MLB himself the officer, person’s belongings. The pursu- for steroids.47 warrant, ant to the determines what is 17(c)(2), a “court Fed.R.Crim.P. Under seized. if may quash subpoena compliance ... [a] By comparison: Id. oppressive.” unreasonable or would subpoena Service of a forthwith does not May that the The district court found entry authorize an a private into resi- subpoenas constituted harassment Furthermore, person dence. served unreasonable.48 were determines whether he will surrender finding, the support To its district the items identified in subpoena Ameri pointed court to United States v. challenge validity subpoena Co., F.Supp. Honda Motor can prior compliance. (N.D.Ill.1967). Honda, In American Id. We concluded that “[t]hese differ- subpoenas that were issued ences are not eliminated the fact that another “substantially identical” one but subpoenas search warrants and were in different locations. Id. 819. As delivered at the same time” and observed result, producing Honda was faced with complaining that the party had “failed to repeatedly, documents and the the same papers show that the that are described found this to be harassment. Id. at court the subpoenas scope are outside the aof Honda, however, does 819-20. American legitimate investigation grand preclude pursu from addition, jury.” Id. at 854-55. ing through the same information the con specifically emphasized the fact that temporaneous subpoenas issuance of given defendant was almost a month to applications for search warrants. *25 comply subpoenas. with the Id. at 854. contempo- We addressed the issuance of Therefore, the district court erred in subpoenas raneous search warrants subpoenas finding the issuance of and the Jury Subpoenas In re Dated De- Grand contemporaneous execution of search war- 1987, 10, at cember 926 F.2d 854. There Players’ rants to be unreasonable. The upheld validity subpoenas argued Association has not the evi- against challenge subpoenas that “the sought by subpoenas dence is “outside time were served same as the legitimate of a scope investigation agents search warrants and the federal grand jury.” subpoe- Id. at 855. The attempted subpoenas to ‘enforce’ the day nas were not returnable on the same through immediate seizure of the docu- the search warrants were executed. Noting ments.” Id. at 854. that the chal- Jury As in re Subpoenas, Grand lenge subpoenas support received no subpoenas return dates on the were over a in precedent, we clarified the differences month from on the date which war- subpoenas and between search warrants: rants were executed. The district court Subpoenas are search warrants. May subpoenas declared the 6 an “unrea- They of intrusion policy, involve different levels insurance” but it failed to sonable person’s privacy. on a A recognize search warrant the different and re- purposes person’s quirements compared allows the officer to enter the of the warrant as We 48. 47. review a district court’s decision to The district court did not find that subpoena quash grand jury oppressive. for abuse of subpoenas were Jury Subpoenas, discretion. In re Grand 803 F.2d at 496.
942 VI legitimate concern subpoena of relevant evidence to the production Non-Party Finally, we address unduly delayed. jury See grand would Unseal, To filed on Journalist’s Motion It was error to conflate the two id. at 854. A. Joshua Gerstein. November it have distinct tools. Insurance seeks access to “the dockets Gerstein Amendment, been; but, under the Fourth below, appeals and the cases these unreasonable it was not. opinions district court orders and/or subject and all appeals, are the of these gov- court also deemed the The district have briefs filed with this Court.”49 We actions because ernment’s unreasonable documents, jurisdiction these because over agents sought search war- found that transferred to the district courts’ records in an at- separate rants in three districts P. 11. upon appeal. R.App. us See Fed. ruling to avoid a on the motion to tempt January quash existing subpoenas Although party, not a Gerstein granting note that and March We enjoys standing file motion based pre- quash the motion to would not have pro upon his constitutional interest seeking from vented ceedings: warrants, particularly given the ex- search amendment, press Under the first cause. As the Fourth probable istence of public presumed right and the have a noted, grand fact that a Circuit has “the proceedings access to court and docu- ... at jury subpoena existed the time .... presumed right ments This can be obviously upon had no effect the search only by overriding right overcome probable whether cause existed to search findings interest that closure “based properly ... for documents which were preserve higher essential values scope.” included the warrant’s within narrowly and is tailored to serve that Photogrammetric v. Data United States interest.” (4th Servs., Inc., Cir. 259 F.3d Court, Oregonian Publ’g Co. v. District 2001), grounds by overruled on other (9th Cir.1990) (quoting 920 F.2d 36, 124 Washington, v. 541 U.S. Crawford Court, v. Press-Enterprise Superior Co. (2004). 1354, 158 S.Ct. L.Ed.2d *26 501, 510, 819, 464 104 S.Ct. 78 U.S. such, (1984)).50 As the district court rested its Supreme L.Ed.2d 629 grounds, and legally order on insufficient interest of particular Court has noted the granting the mo “publish[ing] abused its discretion informa- media members quash. concerning operation govern- tion to See United States v. Iver tion (9th Cir.1998). Commc’ns, son, Inc., 1015, 1026 ment.” Nixon v. Warner F.3d premises proceedings court on No- 50. Gerstein his motion on Ninth 49. Oral before this 27-13(c). 2005, 15, Rule That states: Circuit rule open public. vember were to the "During pendency appeal, any party of an 9, 2005, an On November CDT MLB filed requesting may a motion with this court file During unopposed Motion To Seal Courtroom filed under seal that matters either Argument. We denied the motion the Oral court be unsealed. district court or in this 14, 2005, day. CDT and next On November Any parties.” motion shall be served on all MLB filed a Motion for Reconsideration of added). Although (emphasis Ger- Id. Joshua During Argu- Motion To Seal Courtroom Oral rule, "party” stein is not a under this his ment, government joined. which the We de- standing constitutional inter- derives from his day. nied the motion same upon applicabili- depend does not est and 27-13(c). ty Circuit Rule of Ninth expressly to the ten named Bal- 55 unrelated 98 S.Ct. 435 U.S. (1978). players. eo L.Ed.2d in Gerstein’s
To decide whether time, recognize At the same limits to of the justifies unsealing portions terest government’s right to retain evidence records, consider the the court also must seized, even where a seizure is rea- broad litigants, of the for “the privacy interests lengthy in order to avoid and in- sonable copy judicial records is inspect right inspection. Fourth trusive on-site Our bar, appeals In the absolute.” Id. precedents explain Amendment extremely in contain sensitive the records may “ledgers” of single retain formation, rec especially drug-testing evidence, may keep intermingled but revealed, could If this information ords. magis- A separate, unrelated evidence. many reputations adversely affect through to sort position trate is the best Therefore, players. competitive baseball evidence and to determine those the actual requires a careful the motion to unseal may kept aggrieved files that when be at stake. See id. balancing of the interests parties Readily separable seek relief. evi- judicial records (noting that access to persons dence unrelated to named in the interests protect privacy be limited must be returned. The search warrants as to avoid disclosure litigants, such 41(g) Fed.R.Crim.P. cases must re- information that of “sources of business to the District of Nevada and manded stand litigant’s competitive harm a might permit of California to Central District ing”). of the sealed documents such review conduct jurisdiction we have Although magistrates. unseal, the motion to analysis a merits subpoenas, regard May With greater famil- having district courts— as the which covered the same evidence in a better iarity with the records51-—are warrants, we con- contemporaneous search interests privacy to balance the position order of the Northern District of clude the pro- materials are and to determine which quashing subpoenas California jury Fed. grand tected materials. See record, illuminat- abuse of discretion. The 6(e). Therefore, we refer the R.Crim.P. caselaw, subpoenas reveals that the ed courts for motion to the district Gerstein unreasonable and did not consti- were not upon consideration remand.52 tute harassment. VII Therefore, the orders of the Central the resolution of now summarize We California, of Neva- the District District of conclude appeals. consolidated We
these da, the Northern District California *27 were rea- government’s that the seizures consolidat- cannot stand. The three cases Amendment, Fourth sonable under appeal hereby in are ed this in ruling that the courts erred and district part REMANDED in and return REVERSED 41(g) required that Fed.R.Crim.P. part. *28 Baseball, Major League rant and confidential majority’s resides. Under the hold- testing analyzed by had ing, magistrate required Comprehen- would be to been (“CDT”), Drug Testing, sive Inc. and other probable review the seized data for cause laboratories, only aggrieved party purpose after seizure if an of the sole deter- indicating wrote the counsel for CDT Major League Baseball mining whether test- accepted steroid the had the assur- adopt an individualized should ing program. of the ances CDT none materials sought by subpoena would be de- bargaining agree- the collective
Through stroyed pending govern- or altered ment, assured that players were of subpoena ment’s reconsideration anonymous and confiden- would be testing if subpoena, and a motion to quash individual tial, samples and and that filed. destroyed upon tabulation data would be object the exer- only
the results. 12, 2004, February grand jury On approximate to determine the cise was against returned a 42-count indictment use with the apparent steroid magnitude (Balco’s Conte, founder), Victor Jr. James to appropriate policies goal fashioning (Balco’s President), Greg Vice J. Valente bargaining The collective address it. (a trainer), F. and Remi Kor- Anderson anticipated acknowledged and agreement (a coach). chemny charges track might well players the tests for some conspiracy included against the defendants ingestion due to the yield positive results intent to possess with distribute anabol- sup- proper over-the-counter legal and steroids, possession ic with intent to dis- plements. steroids, introduction and tribute anabolic by the developed information Although into inter- delivery drugs of mis-branded investigation in its criminal defraud, with intent to and state commerce individuals who only specific pointed drugs held for sale with misbranding of Baleo, govern- be involved with might to defraud. intent jury subpoena on grand ment served 16, 2004, seeking drug January on CDT government served a On March major league players. for all baseball tests CDT, jury seek- grand subpoena second Players receiving subpoena, After named ing information on eleven and CDT contacted the United Association However, it did not players. baseball their Attorneys’ Office to discuss States January subpoena. On withdraw the subpoe- of the concerns with the breadth compromise no reached April with request, government’s At na. Players passed, date with a return CDT, Association, Major Players a motion the Northern Association filed presented League prepared Baseball San Francisco District California detail- paper” a “white The motion quash subpoena. the CDT bar- ing provisions of the collective Judge Jeffery assigned S. White. testing, gaining agreement pertaining confidentiality many on the emphasis quash a motion to learning After concerns about the provisions, raising could filed but before the motion would be constitutionally-protected of the invasion heard, government applied for who were privacy interests the CDT offices search warrant search investigation. in the Baleo not involved seeking in information it was for the same The search war- grand jury subpoena. Players Association and CDT as- 240 miles application rant was made some writing that CDT sured the district, judicial away in another federal subpoenaed all of the rec- would maintain Players notice to the Association without disputes were ords until resolved in the Northern 4, or to the district court February litigation. On negotiation of California. of the Criminal Division District the Chief *29 in “that proceedings In the warrant assurances CDT will maintain and search California, gov- by the Central District of called preserve all materials for brought magistrate ernment never subpoena any first as well as materials that there was a motion judge’s attention for that subpoena” called the new Judge White the North- pending before destroy any “CDT would not or alter quash to ern District of California materials for of the called either The did grand jury subpoena. affidavit subpoenas.” Players not disclose that Association government’s application, on the Based Rather, joined motion. the affida- had by Magistrate search warrant was issued vit stated: Judge Jeffery W. Johnson Central jury grand subpoena, The referenced Angeles. District of in Los California B, the items listed in Attachment was warrant authorized the seizure records issued; however, denying while not that regarding drug specimens, testing, and materials, requested have the CDT only specifically test results of ten named subpoe- comply has declined to with the Major League players. baseball The war- attempt na intent to and has stated its if provided computer rant also that quash subpoena.1 to any data not fall seized did within of the The affidavit did not disclose that CDT items to be seized or is not otherwise agreed writing keep had to the data and legally seized, would re- scope secured until the other materials provided by turn the data. The affidavit settled, grand jury subpoena was ei- Special Agent Novitzky support of the through negotiation ruling or a on a ther issuance of the warrants that ob- stated Rather, jus- quash. motion to the affidavit taining information link the test results removing computer equip- tified data and necessary to individual “to premises ment from the searched on the that samples ensure of individuals not as- computer that data con- basis could be sociated with Baleo are left undisturbed.” cealed, altered, destroyed by or the user. day The warrant was issued one after magis- also informed affidavit quash grand jury the motion sub- judge “[cjomputer trate hardware and poena had been filed in the Northern Dis- storage ‘booby traps’ devices contain Upon trict of California. arrival at the destroy or data if certain proce- alter premises morning on CDT of the scrupulously are not It dures followed.” search, Special Agent Novitzky and other computer “particularly data was noted agents attorney discussed with CDT’s vulnerable inadvertent intentional computers. need to search CDT’s modification or destruction.” sought The information in the search any did not have evi- places: warrant was contained in three sought dence or reason to believe that the list jeopardy. segregated containing materials were To the con- information trary, accepted writing subject it had about the ten athletes that were CDT’s later, Judge 1. Some months Illston asked the fense had indicated that it wanted to move to government: you explain Judge quash subpoena. "Did John- So did indicate to White, happening Judge Judge disputed grand son what was before Johnson there was a Yes, day got jury Judge you even him to issue issue. it was disclosed replied, application "We warrant?” Government counsel Johnson.” Neither the warrant Judge support appli- did inform of the existence of nor the affidavit filed in Johnson grand jury subpoena pending pro- and it’s in the war- cation contain reference application ceedings Judge rant that de- before Johnson White. *30 warrant; Judge Cooper specifically later found a master list of the the search “[ojnce that the items were seized the Major League for all results drug test search warrant requirement computer and a directo- players; Baseball by any seized items not covered the war- (often “Tracey Direc- to as the ry referred segregated by rant be first screened and and med- information tory”) that contained computer completely ig- was personnel of other for hundreds ical test results Agent nored.” She further found that No- in engaged and athletes players baseball vitzky comput- seized himself reviewed the for CDT re- sports. Counsel professional er data and used what he learned to obtain to the pertaining that all material quested subsequent search warrants issued be re- listed the warrant specific items California, the Northern District of judge by magistrate redacted viewed and California, Central District Nevada. by the master it was seen special before search, After initial and based on the government The refused government. results, government sought search rejected also request.2 day a second warrant obtained search it provide the records had CDT’s offer Judge Magistrate from Johnson for already segregated concerning the small storage facility by search of a maintained at issue. players subset CDT. materials, segregated In addition to the day, On the same also list, the the master applied for a search warrant the District (which Directory consisted Tracey entire sought The warrant informa- Nevada. files), 2,900 of teams and of more than lists Quest Diagnos- files of tion business details, and elev- drug testing players tics, Inc., laboratory that had also been diskettes, drug- contained all of which en Major involved in the administration of Major League results on hundreds of test drug testing program in League Baseball’s players and other athletes. Baseball was limited to informa- 2003. The warrant Tracey Directory at agents searching the concerning players tion the ten baseball certain of the the scene concluded that Angeles war- identified the Los search contain infor- appeared to subdirectories support of the rant. The affidavit filed by warrant. mation not called for history warrant did disclose jury subpoena the subdirecto- or the copying grand Rather than issuance of the subpoena. quash of a motion to Major League filing Base- pertained ries information provided Based on the ball, directory. agents copied the entire Judge Lawrence Magistrate government, 2,911 fact, directory contained files warrant, and the war- Leavitt issued the Major nothing League to do with that had rant executed. contained drug testing, but rather Baseball sports other en- test results for numerous 9, 2004, April Players Association On Dr. organizations. tities business emergency hearing an before arranged in an Joseph of CDT later stated White, Jean whom the motion to before easily directory was pend- affidavit grand jury subpoena was quash the key Players sought and would have Association ing. searched word from dis- restricting information about the ten provided test order any information had obtained seminating time. period in a short minimize, as to provide cuted in such a manner Department Justice Guidelines that, scrutiny of confi- greatest practicable, involving patient extent in cases confidential 59.4(b)(4). information, § materials.” 28 C.F.R. "shall be exe- dential a search warrant Players until the had an that it oppor- good-faith Association “had reasons to believe *31 tunity litigate quash to the motion to or a detrimentally that delaying CDT was the prop- Rule motion to return the seized investigation, that there was some erty. government argued Judge The that danger sought-after being of the records jurisdiction had no over White the items jeopardized.” government ar- also pursuant warrants, seized the to search gued justified jeopardy proceed- though jury even grand subpoena the ing with a search warrant DOJ under sought the same materials. guidelines. government represented to the date, 30, 2004, April On the same based court that it would disseminate the search, in what it had found the first negotiate good information and in would government sought the a new search war- faith Judge about the seized items. White rant in the Northern District of California accepted that representation. He noted in San Jose for CDT electronic it files jurisdiction that he did not have over the already possession Tracey had in its in the warrants, items seized pursuant but Directory concerning players all whose quash grand jury the motions to the test positive. results were subpoenas pending remained before him. Judge acknowledged that posi- White In contrast to the affidavit in supplied tion of Players Association was “well application, the first warrant which pur- taken with respect Attorney’s to the U.S. ported samples “to ensure that of individu- manual government allegedly and the als not associated Baleo are left un- following proper procedure,” but that the disturbed,” Agent Novitzky affidavit of Players Association had other available in support application of this warrant remedies to resolve that issue on the mer- sought “authorization to conduct a thor- its. major ough league all review of baseball- 22, 2004, April government On wrote computer related data” and “to all seize CDT indicating that was withdrawing data pertaining illegal drug any use 16, 2004, the January subpoena and modi- major league member of baseball.” 3,
fying the March subpoena of 2004. The did not inform White of The affidavit specific conceded no January these actions and the 16 subpoena linking information had been uncovered was never withdrawn. Baleo players individual baseball 2004, beyond in April the ten listed April Players
On CDT and Asso- However, search in ciation warrant. filed a motion contrast Central Dis- application, trict of California return the first Agent of the warrant No- or, alternative, vitzky appoint- though averred even there was special ment of a master redact those no developed evidence that had been records so that retained link who ballplayers were not listed drug test players results for the ten Baleo, the first warrant to “it logical named in the warrant. testing assume that a drug review the may provide records for other players ad- 30, 2004, April
On filed ditional evidence of use of similar ille- opposition its to the motion to return prop- gal performance-enhancing drugs which erty in the opposi- Central District. its tion, charged establishes a link to the defen- despite agreement the existence of an case, charged given with CDT that would not dants in the destroy [Baleo] CDT documents, alter argued relatively professional small number of support application closely-knit pro- affidavit filed and the baseball community.” pending proceedings con- disclosed fessional baseball jury subpoenas. cerning grand Based of issuance support affidavit govern- provided on the information grand that a not disclose did the warrant ment, by Magis- the warrant was issued issued for had been jury subpoena Judge Rosalyn Chapman. trate quash a motion to and that same material very subpoena pending 6,May after it had executed On *32 district. same warrants, government the the search jury subpoenas not disclose on CDT and grand affidavit also did served The in the litigating Quest sought Central materials it had parties the were for the same for return of May a motion search warrants. April District of California 30 and very property property subpoena the seized contained the names of the The —the new search war- subject of the allegedly which was tested players baseball had the information request. Based on rant positive, though government even Magistrate by government, provided Quest possessed that the information knew a new Lloyd issued Judge Howard W. by number and even identifiable for the same material search warrant had assured the though government already had searched government Players Association and White seized. gov- The not disclose the names. would Quest Diagnostics ernment sent a letter to 2004, 5, sought May government
On not to instructing company disclose in the District of Nevada warrant a search docu- government’s request anyone contained the files for information “indefinitely” “[a]ny such ments because concerning all baseball Quest Diagnostics investigation impede could disclosure who, information according to the players thereby interfere being conducted and search, had tested in the CDT collected the law.” with the enforcement of con- application positive for steroids. evidence specific that there was no ceded 2004, Players and the May On CDT to Baleo. The war-
linking players these in the District of filed a motion Association by Magistrate Judge rant was issued seized property for a return of the Nevada sam- large physical A Leavitt. number 7, 2004, Quest Diagnostics. On June from (later re- bodily fluids were taken ples of filed a Players Association CDT and 250 to 300 government to be ported District of Califor- motion in the Northern given by the multiple samples because documents return of the electronic nia for transport- players), which the April 30 pursuant from to the seized CDT Angeles. a lab Los ed to by Magistrate warrant issued search sought May On District. Judge Lloyd in the Northern District of warrant the Central search 9, 2004, held a July Judge White On before a differ- Angeles in Los California quash grand on the motion to hearing all information magistrate judge for ent pend- deferred action jury subpoenas, but concerning in the flies at CDT contained motions for return of rulings on the ing who, according to the players all baseball to the search pursuant search, in the CDT information collected warrants. positive marker for steroids. had -9, 2004, Judge Susan Illston August On no conceded that there was application return of on the motion for hearing held a linking these specific evidence govern- data seized application nor the electronic Baleo. Neither pursuant April provide ment 30 warrant. that “The fact that the disinterest- by Judge why party possessing When asked Illston ed third the materials just hadn’t Judge may grounds challenge waited to let have a subpoena legal rule on motions to or other quash process White is not itself a jury grand subpoena seeking legitimate rather than basis for the use of a search material, § search warrants for the same the warrant.” 28 C.F.R. 59.4.
government responded: that, government primarily argued government really perceived
What the though even the material seized ultimately as a conscious decision on the have been authorized under the search part Major League Play- Baseball warrant, appropriate seizure was under parties ers Association and the other “plain view” doctrine. The court en- just associated with it to comply refused gaged in an colloquy extensive about the with what the felt was [sic] search, ascertaining that the data was con- legitimate grand jury subpoenas. *33 tained a file that could not be accessed readily assistance, without that the Later hearing the the 1,200 agent had to scroll through results to argued that the search warrant was neces- positive obtain the that tests formed the sary quash because motion to had been basis of the later search warrants. After filed. noting that the pro- had not was, Counsel: say, The concern here to support vided case to its contention okay, going we’re to face brick wall that plain view doctrine applied legal from this avenue.... context, computer Judge Illston made the Judge: What brick wall? following findings: Counsel: The brick was ... wall I absolutely staggering find implica- Judge: Judge White? you say tions what plain about about the No, no, Counsel: not at It all. was view doctrine in the computer up. set requests concern that that discus- way In a nothing plain inis view be- sions about to moving quash subpoe- you it, cause you disk look at na would be something that would be don’t see anything you until stick it in dragged out. computer and it quite does take a lot really bring of work it up on the hearing, At a later govern- counsel for screen. ment confirmed that it would not have
sought So, to obtain the search warrants if the in plain it’s not view in the sense of parties walking affected had not filed a motion to seeing into the room and quash grand jury subpoena.3 Howev- scale on the desk. It takes a whole lot er, Department get Justice Guidelines of work to there. 10, 2004, But, mean, hearing
3. A on December discussed subpoena Court: I there was a infra, colloquy: contains this process pending building in this before Counsel: And the never would White. grand have done the search warrants if the Counsel: Yes. jury process could have worked out. But it you got your At the time Court: went and didn't. I feel— warrants, you search didn’t allow that Say thing Court: that last one more time. process complete itself. you— What Counsel: That is true. just Counsel: What I said was have ever done the search warrants if subpoena process worked out. think, I off, rights. are stitutional it’s a seizure cursory, it is there First none of beyond- what was authorized developed have industries that whole warrant, search therefore it violates for the disk possible to make it order Fourth Amendment. way. So it’s up on the screen show I think it’s cursory two, don’t review. Number I think mov- [that both go view. I don’t think I have plain here have an interest and need for ants] they far or that kind of choice with I make returned. think certainly going that are it and not much be- respect issues need returned so back, it, requires sorting they you it cause it they got to arise.... need Where it; I got they get on a think what through really information which is need what, base, have, you they back from what being organized it’s data somehow formats, you’ve taken from them because of the you organize could in different names, rights and the un- privacy circumstances on the ten a format based given. der which this material was it in kinds of taking instead other formats, scrolling taking then across irrepa- would be [movant] Whether screen, off rably, injured by denying names and information the return of would, clearly it’s information that isn’t I think and I property, when be, originally what within the think there would part of indeed warrant, just injury I think volun- authorized search will suffered , confidently pro- teers not able to impermissible. being *34 .testing promise privacy vide under Judge granted Illston then the motion injure major irreparably only would property, return of for seized baseball, league imagine I can’t from the bench: following findings any voluntary agree- there’s going So, having at the Ramsden fac- looked testing, to do kind of that’s ment this out, four apparently are] tors set [there just already, also probably over with but One, the government factors. whether implications negative that are very has disregard a for the displayed callous [movants], and for these whether two, rights, whether constitutional adequate remedy at has an [movant] right has individual [movant] law, remedy I at don’t think there is re- for wants property need he grievances. for the redress of these law turned, three, whether the [movant] I’m,going grant the motion. injured by denying irreparably would be 13, in August the Central District On property, motion for return California, Judge is Magistrate Johnson four, an ade- whether the has [movant] report recommendation recom sued a his remedy at law for redress of quate mending denial of the motion for return I all four factors have grievance. find at CDT. property seized met here. been Nevada, August has in in the District of displayed, I think the On seen, on hearing Mahan things Judge that we’ve James C. held chronology Players Association way in case taken from the motion filed that the was at way property judge judge, for the return of the seized one another Quest Diagnostics pursuant in one to the search challenged that as soon as it was court, dis- immediately did not litigated it warrants. The Judge Players or the Asso- full information close to Mahan another court without courts, Quest grand among the that to ciation that had served being shared materials, cou- subpoena the same jury makes it for con- for disregard me a callous pled instructing Quest with a letter keep argued Judge White was the that fact indefinitely. jurisdiction confidential At judge who had to decide that conclusion of hearing, Judge Judge Mahan issue. Mahan stay denied the mo- orally granted September the motion. On tion. The maintained that the 7, Judge May grand jury subpoenas Mahan filed a written order independent- granting ly the motion for return of prop- authorized retention of the data and found, therefore, erty. specimens; Mahan Players relevant Associa- part, that: tion and quash CDT filed motion to May subpoena in the Northern District States,
2. Under Ramsden v.
United
of California.
(9th Cir.1993),
F.3d 322
this Court has
jurisdiction
equitable
to order return of
1, 2004,
On
October
the Central Dis-
property.
All of the factors
California,
trict of
Judge Cooper declined
Ramsden
identified in
supporting juris-
adopt Magistrate
Judge Johnson’s rec-
diction are present.
ommendation,
granted
motion
callously disregarded the
play-
affected
return of the seized CDT property. She
MLBPA,
ers’
rights.
constitutional
joined
noted that
apparently
she
“an
ever
representative
players,
for the
has an
increasing number of district judges who
individual interest
in and need for the
have held that the Government’s execution
property that
it wants returned. The
of the Search Warrant at
issue
this case
MLBPA
irreparably injured
would be
if
disregard
demonstrated a callous
for the
were not returned. And
constitutional rights of the movants and
the MLBPA
adequate remedy
has no
their members.”
grievances.
law for redress of the
respect
factors,
to the Ramsden
With
particular
3. Under the
circumstances
Judge Cooper found:
case,
of this
it was unreasonable for the
All four
weigh
considerations
in favor of
Government to
pro-
refuse to follow the
moving
parties
case.
as-
*35
cedures set forth in United States v.
sessing
whether
the
dis-
Tamura,
(9th Cir.1982),
953 if they by a would suffer the records were magis- “pending approval ments (even positive if the are released tests [. search... trate of further Wholesale innocuous) irrepa- shown judg- to be would be must be monitored removal neutral, magistrate.” rable. of a detached ment particularly telling It
Id. at is Finally, it is evident that the movants just procedure such was this case legal remedy. have no other No motion the time proposed the Government the evidence available to suppress is search, rejected. and them; are neither nor defendants suspects, no case in which this exists files viewing is the Nor litigated. issue could be Plain View doctrine. legitimized to the warrant re exception Under to her conclu- findings addition seize what he quirement, officer sions, Cooper these com- added views, has as he a lawful long so plainly labeled ments in a section “Serious Con- itself and its right to access the evidence cerns:” immediately is incriminating character presented to the Court documents California, v. apparent. Horton with this reveal connection Motion 128, 136, S.Ct. U.S. part extremely troubling conduct on the (1990). Here, did agent L.Ed.2d The picture painted of the Government. right have a lawful access ac- desperate is one almost effort to diskettes, and, as computer records and quire by whatever means could evidence in connection provided evidence negotiated be utilized. The Government reveals, the evidence observed Motion attorneys with movants’ over incriminating. Dec necessarily grand jury subpoenas; breadth of the Joseph of Dr. states that laration writing assurances received can supplements of nutritional ingestion the ten athletes would be records of “positive” test for steroids. produce the Court resolved secured while demonstrated a callous The Government issue, day after the issue rights of disregard persons for the Court, another presented to a went to whose records were seized searched sought a warrant. district and search the warrants. outside in itself. suspect That would be conduct (not consideration, whether the seeking The second But the warrant moving party obtaining an interest and need docu- has correct procedure *36 easily of is an- not a property, party for return the ments a third who is for question in suspect), explained swered. athletes volun- the Government tarily testing ques- to urine for the in Magistrate submitted the records steroids, part agreement destroyed. as an that all danger being tion in of were results would remain confidential and be as misrepresentation, This a blatant is analysis. used for statistical Their the in this by records demonstrated in obvious. privacy interest is case. consideration, Four filed a motion days the after Movants
The third whether Judge for re- Magistrate Johnson moving party has an interest and need before the ob- turn property easily property, return of is an- Government the Magis- warrant from of these athletes tained a further swered. careers District of trate in the Northern profoundly, negatively Judge be affected could records, for re- California. And while a motion release of and their these the property pending, turn vitally important. The harm return Government obtained ing two more war- April search warrants rants the Central District of preempting Califor- subpoenas served on (not nia Magistrate Judge CDT, from Quest John- appears decision son) and in image Nevada. The have been a prevent tactical decision to quickly skillfully moving cup parties so raising objections from be no one can find pea White, would be humor- Judge fore which is unreasonable ous if the matter were not so serious. and constitutes harassment similar to the conduct in United States v. Ameri Noting that “the Government is held to can Honda. far higher standard than has been dem- Furthermore, May 6th subpoenas case,” onstrated in this and that “this is were served after had the third District compelling Court Order obtained evidence pursuant April the Government to return property illegal- April warrants, 7 and 30 search which ly seized,” Judge Cooper ordered return of has been determined to have been ille- the seized CDT property forthwith. gally seized. Some of the information 10, 2004, On December Judge Illston sought in May 6th subpoena was held a hearing Players on the Association already in government’s possession motion quash to intervene and to May at the time subpoena was served on grand jury subpoenas served on Quest; therefore, CDT and the Court Quest. CDT and At the conclusion of the May finds 6th subpoena served hearing, Judge Illston made the following as an unreasonable policy insurance oral findings and conclusions: recognized in the motion for the return I find that the right MLBPA has the papers, cited intervene this matter under Federal 681 F.Supp.[sie] 24(a), Rule of Civil Procedure as it has For these reasons the court grants peti- an interest the samples and test re- tioner’s motion quash May 6th possession sults in the of CDT and subpoena Quest served on and CDT as Quest, which were created with the grand abuse of jury process promise anonymity under the manda- unreasonable under Federal Rule of tory testing of the 2002 collective bar- 17(e). Criminal Procedure gaining agreement. 18, 2005, On October as a result plea of a 6th, May 2004 subpoenas were the agreement, Baleo founder Victor Conte re- culmination of a series of actions taken ceived a sentence of eight impris- months prevent order to onment, with four months of the sentence MLBPA and CDT’s attempt to move to to be served in home confinement. James quash January and March subpoe- Valente, president, Balco’s vice was sen- nas. allowing Instead of the matter to probation. tenced Trainer Greg in single resolved proceeding before Anderson was sentenced to six months White, executed imprisonment, with three of the six months a series of search warrants in three *37 to spent in home confinement. On different districts once learned that 25, February 2006, track coach Remi Kor- petitioners would move quash to chemny year was sentenced to one pro- of January subpoenas. and March bation. provided has no sub- stantial explanation why of this of In reviewing course quashing both the order action necessary. was grand Given that jury subpoena and the orders government had no other basis for granting issu- the motions for return of proper-
955 course, ordinary ap- make 41(g), we would to FecLR.Crim.P. ty pursuant 4(a)(1)(B).4 P. untimely. R.App. Fed. peal of the district findings the factual review “A to this Jury timely appeal required vest for error. In re Grand courts clear 10, 1987, jurisdiction.” 926 court Fiester Tur- Dec. F.2d with v. Subpoenas Dated (9th Cir.1991) (9th Cir.1986). (orders ner, quash 1474, 847, F.2d 1475 854 783 jury States v. The contends that we subpoenas); Players United Association grand Cir.1999) (9th 1213, jurisdiction Marolf, government’s F.3d 1216 lack 173 due (orders property). on for return of untimely filing. motions contends for quashing subpoenas review orders that for an tolled filing appeal We the time was of v. discretion. United States abuse its of a for Reconsidera- filing “Motion (9th 1221, 1224 425 F.3d Cir. Bergeson, tion” the district court. with 2005) Subpoena, Jury In re Grand (citing of Civil do Federal Rules Procedure (9th Cir.2004)). 900, F.3d 906 We 357 provide for “Motions for Reconsidera- de a district court’s denial of review novo Rather, are tion.” such motions creatures pursuant for of property motion return case, In this practice. of local rule or Marolf, at 1216. 41(g). Rule 173 F.3d pursuant motion filed government’s was Local of Rule 7-18 the Central District
II California. Federal Rule of Civil Proce- jurisdictional preliminary There are two courts make dure 83 authorizes district (1) Players Associ- questions: whether governing practices long rules their own so Fed.R.Civ.P. standing ation had file the are “not inconsistent they [the with for return of 41(g) motions a conflict arises Rules].” Federal Where (2) members, and whether behalf its two, pre- rules must between the federal Judge timely appealed Coo- Battin, 149, v. 413 U.S. 161 Colgrove vail. 41(g) order the Rule motion. per’s granting 2448, (1973); n. L.Ed.2d 522 93 S.Ct. 37 majority Play- that the agree I with the v. Sch. Loya see also Desert Sands Unified organizational had stand- ers Association (9th Dist., Cir.1983); F.2d 41(g) ing to file the Rule motion return 2071(a) § rules (providing U.S.C.A. that specimens seized from of the records adopted by district must be consis- courts Quest. -although the same For reasons— procedure). tent the federal rules with majority does reach issue-—I Thus, faced for re- when with motion Players also Associa- hold would rules, under we must consideration local standing to organizational tion had file the rule, reject it as either harmonize the 41(g) proper- Rule motion for return of uniform rules. conflict the national CDT. ty from Gates, 44 F.3d v. See Marshall However, respectfully disagree I Cir.1995) (“We (9th are, however, under timely appealed obligation construe local rules so motion for Cooper’s granting the order rules, the federal do not conflict with property. return ingenuity our and we have exercised so.”) doing A For a local purposes appeal, when undisputed government’s
It is sixty postjudgment rule motion for recon- more than based appeal notice filed which, argu- on an premised is made days judgment after was entered sideration *38 9, 10, 2005. Appeal of was filed March judgment was 2004. The Notice 4. The filed October 956 59(e) showing filing
ment that there was a “manifest
Rule
will toll the time for
facts,”
...
of a failure
consider material
appeal
of
from
underlying judg
notice
(1)
we construe it either as
a motion to
until
ment
court
district
denies the
judgment
alter
under Rule
or amend
59(e)
Rule
motion.
374
Shapiro,
F.3d at
60(b)
59(e)
(2)
or
a motion filed under
for
However,
untimely
of an
filing
59(e).
judgment
relief
under Rule
from
59(e)
running
motion
not toll the
Rule
does
1437,
Jewelry,
Fuller v.
F.2d
M.G.
950
appeal period.
Younger,
of
v.
Scott
Cir.1991).5
(9th
1441-42
Whether we con-
Cir.1984)
(9th
1464,
F.2d
1467
(citing
739
59(e)
as filed
Rule
strue the motion
under
Agric.
v.
Cel-A-Pak
Labor Re
California
60(b) depends
timing.
or Rule
on the
Am.
(9th
Bd.,
664,
680 F.2d
666
lations
Cir.
N.
Ironworks & Erectors Inc. v.
Am.
1982)).
day
The ten
time limit
Rule
(9th
892,
Corp.,
Constr.
248 F.3d
898-99
59(e)
jurisdictional
“is
cannot
be ex
Cir.2001). If the motion for reconsidera-
Indeed,
by the court.”
tended
Id.
Federal
entry
days
tion is filed within ten
of the
of
6(b),
Rule of Civil Procedure
which allows
judgment, we construe it
filed under
file,
enlargement
for
time
states that
59(e). Shapiro
Shapiro
Rule
ex rel.
v.
“may
court
extend
time for tak
Valley
Paradise
School Dist. No.
Unified
[59(e)
...,
action
ing any
under ...
ex
]
(9th
69,
857,
Cir.2004);
374
863
Am.
F.3d
cept to
extent and under the conditions
Ironworks,
898-99;
at
248 F.3d
United
itself].”
stated
the section
Fed. R.
[in
Civ.
Inc.,
394,
Nutri-cology,
States v.
F.2d
982
6(b).
Pro.
(9th Cir.1992).
397
This construction is
59(e),
provides
accord with Rule
which
60(b)
filing
of a Rule
outside the
a motion
alter or
judgment
amend the
time
ten-day
limit does not toll the time
days
“shall
no later
be filed
than 10
after
from
appealing
underlying judgment.
entry
judgment.”
of the
Fed. R. Civ. Pro.
ricology,
Nut
957 (9th Cir.1985), modified, days ten of the or 805, judgment as 798 order order 807 (1986). filing F.2d time of appeal. 348 to toll the for notice Nutri-cology, F.2d at 397. The time 982 govern Here, that the undisputed it is filing for appeal limits established are motion for reconsid ment’s post-judgment “mandatory jurisdictional.” Browder timely filed. the order was eration of Director, v. 1, Dept. Corrections Illi the order on October Judge Cooper filed of of nois, 257, 264, 556, 2004; its U.S. did not file mo 434 98 S.Ct. 54 23, (1978). to until November 2004. majority’s tion reconsider L.Ed.2d 521 con government’s view, motion recon trary Because I explained, contrary as have is day filed outside ten time sider was plain language of Rule 28 U.S.C. 59(e), must con specified limit Rule we 2071(a), § controlling precedent. 60(b). motion filed under Rule strue the as To summarize: Consistent with our Ironworks, 899; Am. F.3d Mt. Gra 248 rules, precedent and I hold that would 1463 n. Squirrel, ham 954 F.2d at Red untimely for government’s motion re- reasons, I disagree For these should be construed as a consideration by analysis by parties offered 60(b) govern- Rule motion. Because the argument majority. government’s appeal ment did not a notice of of the file liberally post-judg- that “courts construe original required the period order within as toll the time adequate ment motions 4(a)(1)(B), by jurisdiction we lack Rule appeal” squarely filing for a notice of is original of the order. consider merits law these cir- foreclosed circuit under jurisdiction I hold would that we have gov- cumstances. The cases cited court’s denial of the consider district pertain only timely to motions ernment reconsideration, for our motion but review day period filed within ten described is to it. confined 59(e), Rule not to motions filed outside the See, Taylor v. day e.g., ten window. (9th Cir.1989) 803, 805
Knapp, 871 F.2d B (construing variety post judgment mo- 50(e) Rule long tions as filed under so denial of a motion for We review the days 60(b) filed ten the motions were within a Rule reconsideration construed as or judgment). after the order discretion, for an motion abuse Sch. 1J, v. County Dist. No. Multnomah agree Players I Although with the Asso- (9th ACandS, Inc., F.3d Cir. jurisdiction ciation that lack over the we 1993), and we will reverse a district court’s Judge Cooper’s original Rule merits “ 60(b) ‘only upon motion order, juris- ruling on Rule I lack 41(g) disagree ” Cooper’s showing of abuse of discretion.’ diction over denial clear Comercial, S.A., govern- Seguros motion for reconsideration. The La Pena v. (9th Cir.1985) filed within appeal ment’s notice (quoting Ellis F.2d denial, sixty days appeal after so the is Railway, v. Airline & Brotherhood of timely as to the motion for reconsideration. (9th 1065, 1071 Clerks, Steamship 685 F.2d Cir.1982)). Therefore, our review con respectfully, strongly, disagree
I but her Judge Cooper to whether abused fined majority with the the Central Dis- government’s in denying the discretion trict’s to override the local rule served and does not motion reconsideration Federal Rules Civil Procedure our underlying to the merits requires extend prior controlling precedent, which filed within order. post-judgment motions *40 we a for ing.
When review motion reconsid the properly As district court con- 60(b), analyze eration under Rule cluded, we the the for motion reconsideration district court’s decision under the usual only amounted to “[t]he Government’s 60(b) factors, provide!] Rule “which for disagreement mere with Court’s inter- (1) only upon showing reconsideration of the pretation opin- evidence and its ” mistake, (2) neglect; or surprise, excusable circumstances, ions .... Under these (3) evidence; fraud; (4) newly discovered certainly district court did not abuse its (5) judgment; void satisfied or dis in denying discretion the government’s (6) or charged judgment; ‘extraordinary I motion.6 would affirm the order of the justify circumstances’ which would relief.” denying district court the government’s Fuller, at 1442. In 950 F.2d its reconsid motion for reconsideration. motion, eration did not mistake, any surprise,
contend there was
Ill
neglect, newly
excusable
discovered evi
I
with
agree
majority
that
dis-
dence, fraud,
judgment,
void
satisfied or
trict courts properly
equitable
exercised
discharged
or
judgment,
extraordinary cir
jurisdiction over
Rule 41(g)
motions.7
Rather,
cumstances.
sim
Ramsden
four
identified
factors
dis-
ply asked
modify
the district court to
its
trict courts must consider before exercis-
finding, suggesting that
the court had
ing
jurisdiction
equitable
to order the re-
already
failed
consider evidence
(1)
namely
turn of property,
whether:
A
court
record.
district
does not abuse its
government displayed a
disregard
callous
60(b)
denying
discretion in
a Rule
motion
movant;
for
rights
the constitutional
it simply repeats
when
argu
its earlier
(2) the movant has an individual
interest
Barnhart,
ments.
v.
Backlund
778 F.2d
need
for the
he
(9th Cir.1985).
wants
1386, 1388
(3)
returned;
irrepa-
the movant would be
response
government’s
motion,
rably injured by denying return of the
the district court examined each of the
(4)
property; and
the movant
has
ade-
government’s assertions that the court had
quate remedy at
law
redress
his
ignored
arguments.
evidence and
In its
grievance.
The concludes the Further, found, as the use Cooper I with that respectfully disagree did not. a to obtain documents of search warrant amply supports The record conclusion. party a is The inappropriate. from third the of the district courts conclusion of Department Justice Guidelines address displayed callous disre- government the point specifically: the rights constitutional of gard for the to A search warrant should be used movants. documentary obtain materials believed of a private possession to in the it party ap- third unless disinterested concluded, among judges The district subpoena, use of a sum- pears the sought things, other that the mons, or request, other less intrusive took and the search warrants and executed the mate- obtaining alternative means a meas- legal action as tactical subsequent the jeopardize rials would substantially and prevent Players ure the Association to availability or usefulness the materi- to quash from their motion litigating CDT the for the sought, application als and pro- the objections and to wholesale other provided authorized warrant has been sup- data. The record duction CDT (a)(2) of paragraph this section. government ap- ports this conclusion. 59.4(a)(1); § also U.S. Attor- 28 C.F.R. see executed, for, initial the search plied § ney’s Manual 919.210. Players the Asso- warrants after CDT Attorney’s pro- Manual also The U.S. ciation informed normal- that a search warrant should vides quash a motion to filing would be obtain confidential mate- ly not be used to coun- jury subpoenas. Government grand §§ 9- such as treatment records. rials that the moti- record sel conceded 19.220,9-19.280. seeking search warrants was vation for filing presented wall” “brick undisputed fact simple and though quash, even DOJ the motions to from its usual government deviated guidelines state that fact that “[t]he Documents held appropriate protocol. party possessing disinterested third are parties ap- of third possession a grounds challenge have materials grand through use of propriately obtained legal process or is not subpoena other warrant. The jury subpoena, not search legitimate for the use of itself basis quite clear that record is § 59.4. search warrant.” 28 C.F.R. warrant vehicle of search used the jury subpoe- thought grand its because majority repeatedly points out the DOJ be contested. As might nas guidelines give do not rise DOJ recognize, subpoena that is an inappropri- Guidelines has stated its intent to use of a subpoena.” ate search warrant. The district quash The affidavit did judges were entitled on the basis agreed not disclose that CDT had in writ- record find that the under- ing keep the data and other materials attempt prevent took this action scope grand jury secured until the Players Association and from CDT settled, subpoena through nego- either litigating objections the merits of their ruling quash. tiation on a motion to grand jury subpoenas. The affidavit did not disclose that Chief the Criminal Division of Unit-
Further, the entire record of case Attorney’s accepted ed States Office had repeated pattern *42 shows a govern- attempting prevent hearing writing. ment a full the assurances Players on the merits Association Rather, justified removing the affidavit legal challenges. virtually In hearing each computer equipment data and from the Players which CDT and the Association premises searched on the basis that: objections, articulated their govern- argued pri- that ment another court had Computer attempt users can to conceal jurisdiction mary or that the action of an- computer equipment data within court other dictated the result.8 The record storage through devices a number of supports the district con- courts’ collective methods, including use of innocuous that, it, Judge Cooper put clusion as misleading or file names and exten- government’s actions constituted a “des- .... Computer sions users can at- also perate acquire effort by what- evidence tempt by using encryp- conceal data utilized,” by ever means could be means tion, which a password means that or “quickly skillfully moving cup so device, “dongle” “keycard,” such or can pea.” no one find the necessary is to decrypt the data into addition, computer readable form. users can conceal within data another supports
The record also amply the con- seemingly unrelated and innocuous file gov- clusion the district courts that the process in a “steganography.” called ernment misleading made in its statements by For example, using steganography, a application for search warrants. computer can user conceal text image file which cannot be application The viewed when lengthy repre- contained Therefore, image file is opened. sentations computer about how data could destroyed necessary that substantial amount of time stated “while not denying requested that ma- through have the to extract and sort data that is terials, CDT has to comply declined encrypted concealed or to determine provide examples: by Magis- To but few Before issuance of a search warrant White, Judge considering who was the initial Judge Lloyd. government trate The contend- quash, government argued motion to that Judge jurisdiction ed Mahan lacked to order ruling he should defer because he had no seized under the re- warrant jurisdiction over materials seized separately turned because had obtained urged Judge warrant. The 111- item, subpoena grand jury urg- for the same 41(g) decide ston wait to the Rule motion ing Judge him to wait until ruled White had Magistrate Judge until Johnson had ruled on (not quash disclosing on the motion to that it separate 41(g) govern- Rule motion. The asked had White to defer until the Rule urged Judge ment that Johnson consider decided). 41(g) motions had been probable already cause been had established evidence, application implied taking that CDT was contraband or it is
whether unjustified unilateral action. instrumentalities of a crime. facts, undisputed the district Given these magis- informed the also The affidavit gov- judges were entitled to find “[cjomputer hardware judge that
trate misleading ernment had made statements traps’ ‘booby contain storage devices applications. in the search warrant proce- if certain destroy or alter data It scrupulously followed.” dures are not computer “particularly data noted amply supports finding record or intentional to inadvertent vulnerable in exe- that the actions or modification destruction.” were a cuting search warrants mere any evi- did not have pretext inappropriately obtaining confi- had or reason to believe CDT dence Major League dential medical data about boobytrapping steganography, engaged not under Baseball who were any type of data destruction computers, particularized of criminal activi- suspicion contrary, it had ac- or alteration. To infor- ty. sought first *43 “that assurances writing CDT’s cepted Major all League mation about Baseball materi- preserve and all CDT will maintain grand jury subpoena. players its initial by subpoena first as well called for the als objection Players the Associa- After from by the any (without called for new materials CDT, government tion and the that “CDT would not de- and subpoena” withdrawing subpoena) its initial issued a materials called stroy any or alter of the subpoena limited information about new subpoenas.” plain The by either of the government for the had a players about whom was that CDT application of the import suspicion were connected to reasonable resisting compliance with a improperly was Baleo. jury subpoena and data was in grand valid purported The initial search warrant implied destroyed. It
jeopardy
being
of
with
players
be limited to the
associated
about
being forthright
was not
that CDT
Indeed,
purported
Baleo.
the affidavit
in fact
possessed,
information it
when
the
obtaining
to link test
justify
information
that
was
suggestion
no
CDT
there was
“to ensure
players
to individual
results
government in
attempting to mislead the
samples of
not associated
that
individuals
respect.
any
Howev-
Baleo are left undisturbed.”
site,
er,
it
all
the data off
once had taken
did not
application
The search warrant
warrants to search
with new
proceeded
Association,
Players
that
the
disclose
for evidence
already possessed
data it
the
medical
of the individuals whose
behalf
There was no
steroid markers.
positive
issue, had
and had
files were at
intervened
investiga-
Baleo
evidence in the exhaustive
joined
quash
grand
the
CDT’s motion
any
players
of these
had
tion
did
jury subpoena.
application
The
not
Baleo,
government
as the
connection to
history
negotiations
be-
disclose the
concedes.
concern
parties,
the
the
tween
examined, it
entire record is
subpoena.
When the
was about
breadth of
attempt-
government
that the
appears
application
The
did
disclose
all
all medical data about
by
ing
CDT and ac-
to obtain
made
written assurances
players,
using
contemplated Major League Baseball
government
cepted
number
through
warrant for the limited
resolving
disputed
issues
the search
doing
Rather,
pretext for
so. The
as a
quash
necessary.
if
motion to
(1984).
procedure employed by
government
Supreme
As
explained
Court
the search
Coolidge
buttresses
conclusion.
v. New Hampshire, 403 U.S.
segregated
454-55,
had
information about
CDT
S.Ct.
L.Ed.2d 564
ballplayers
subject
(1971):
who were the
However,
agents in-
search warrant.
Thus the
basic
most
constitutional rule
taking
directory
sisted on
the entire
in this
area is
searches conducted
all players.
information about
To the ex-
judicial process,
pri-
outside the
without
responsive
tent
data
to the warrant
approval by judge magistrate,
or
are
segregated
provided
had
been
per
under
se unreasonable
the Fourth
material,
easily
the information could have
subject only
spe-
to a few
Amendment —
site. Yet
been isolated on
cifically established
well
delineated
removing
directory.
insisted on
the entire
exceptions.
exceptions
jealous-
are
suggested using
pro-
CDT
Tamura
carefully drawn,
ly and
and there must
cedure,
magistrate judge
under which a
a showing
exemp-
those who seek
first
segre-
would
examine the data and
exigencies
]
tion
that the
situa-
[
gate the non-confidential material. How-
imperative.
tion made that course
ever,
rejected
that ap-
seeking
exemp-
burden is on those
Instead,
proach.
tion to show the need
it.
it,
everything,
sought
then examined
then
omitted).
(quotation
marks
citations
additional search warrants as protection
that it had
concedes
no
against its
search.
unauthorized
probable
particularized
cause or even
rea-
facts, among many
These
others from
*44
suspicion
sonable
that could have formed
record,
adequately support
the
more than
the basis for
the issuance of
search war-
the
that
conclusion
the
used
physical
rant
to obtain the
samples, and
pretext
the limited
for
warrants as
con
testing
data
from
sam-
obtained
ducting
general
an unauthorized
search —a
ples, concerning
players
who
not
were
rejected
tactic we
in
v.
United States Ret
involved
the Baleo investigation. The
(9th Cir.1978).
tig,
418
589 F.2d
government’s particularized warrants were
to
limited
ten identified
whom the
4
it
alleged
had reason to be-
finally justifies
majority
govern-
The
lieve were involved with Baleo.
by concluding
ment’s
gov-
actions
that the
majority
The
endorses the warrantless
right
ernment had the
to
seize all
seizure and
search
confidential medical
data
medical
because the data was “inter-
pertaining
information
to individuals not
mingled” with
responsive
data
to the war-
any
under
criminal suspicion, reasoning
rant. This conclusion is the one with
of a
the existence
handful of relevant
I
which
profound disagree-
have the most
justifies
records
the seizure and subse-
ment with majority.
quent search of
thousands
irrelevant
There is no doubt that
agents
did
I respectfully disagree.
records.
comply
They
not
warrant.
an enormous
personal property
majority’s
amount of
holding squarely
conflicts
belonging
decades,
to
prior
individuals
under
sus with our
precedent. For
we
picion
activity.
of criminal
A warrantless
have eschewed the
search
indiscriminate
is,
course,
presumptively
search
unrea
and seizure of materials that are not re-
Karo,
sonable.
v.
sponsive
United States
468 U.S.
to a
In
valid search warrant.
Tamura,
705, 714-15, 104 S.Ct.
were majority’s holding govern- that if the to the casual observer obvious ment entitled to seize all records *45 the correlated to files directories drug test the non-Balco the file because to there was no reason think name—and in “intermingled” the same results were nothing do had to otherwise —the material puts privacy most basic file Americans’ in the warrant. with the ten listed in a rule would jeopardy. Such interests Major League that concerned In the files the medical the seize entitle there was information on players, Baseball had anyone who the misfortune records of 1,200 multiple players, with approximately belonging to a visiting hospital or of results.9 test patient rec- provider kept care health of file which also any v. in sort master majority The relies on United States ords (9th Beusch, Cir.1979), infor- person the data of a whose 871 contained 596 F.2d agents did take distinguish points the here not majority what the out that 9. The tries computers computer all of in transpired Ta- the whole or the agents did here from what that, here, recog- agents This distinction fails to by stating took CDT’s office. the mura age computer Tracey Directory not nize the difference between copy and paper age. of the files in one and All the case in Tamura. the master files was computer today's countervailing directory one world priva- is on when the interest Yet business, equivalent very of all merely disruption could well constitute cy and yesterday's office in copies or in an entire it is files that interest suffers whether paper originals majority also era. that are seized. 964 subject 79, 84,
mation was to a search warrant. I 107 94 U.S. S.Ct. L.Ed.2d (1987): entirely Judge agree Illston’s obser- implications approving
vation that The Warrant Clause of the Fourth staggering. such behavior are Under the categorically prohibits Amendment majority’s laboratory no holding, hospi- or except issuance of warrant “par- one facility or guarantee ticularly tal health care could describing place to be confidentiality persons things records. searched and the to be purpose seized.” manifest of this majority attempts discount this particularity requirement prevent towas but possibility, principled offers no reason general By limiting au- searches. why it apply does not hundreds other specific thorization search to ar- Indeed, questioning contexts. under from things eas and for proba- which there is judges, the district did not search, requirement ble cause to possibility discount of other wide- carefully ensures that the search will be spread searches.10 justifications, tailored to its will on wide-rang- take the character of the Supreme observed, As the Court has exploratory ing searches the Framers history is familiar “[i]t that indiscriminate prohibit. intended to searches and seizures conducted under the authority ‘general Unfortunately, warrants’ were the the majority’s theory —as evils framing immediate that motivated the well government’s just as the —causes adoption type the Fourth Amendment.” theory of result. The more sensible York, Payton 573, 583, New v. 445 U.S. with respect to electronic data is to enforce (1980). 100 S.Ct. procedure L.Ed.2d It outlined Tamura and re- particularity this reason that the quire that a neutral magistrate examine requirement in warrants was adopted. co-mingled As data that the Garrison, Maryland Court noted in v. proposes to seize to private make sure that example, hearing Magistrate 10. For appear deny before have officers viewed following Johnson contained the collo- sports: individual records in other quy between counsel hockey subdirectory What if Court: had a Court: positive had results and clicked it he * * * drug Court: there some If other was, by to make it what sure was it said it CDT, testing apart you lab from would ever was, George, that’s what it what about that? use—but the for the ten test were CDT. checking Counsel: I don't know to make you go Would ever use this information to hockey happen. sure was that didn't If it say just you get demand that can — happen, theoretically I did would think that drug testing results from other labs test *46 Agent Novitsky right would have the ei- to professional athletes.... Based on the theo- or, request ther a I suppose, search warrant ry systemic. prob- that it's so a And there’s you enough, possible if looked at it it’s that lem, problem. there’s a And know that obvious, view, plain it was it was it was athletes, these other labs test too. drug by hockey players. other use So there you just go So can search? legal might Agent be a entitlement for No- Yes, your Counsel: honor. vitzsky something to use that do and with it. Similarly, hearing Judge in another Illston happened suppose It hasn't in this I case. government asked counsel whether he theoretically possible, again, you that’s thought possible it was to the take informa- believe, have, probable would I cause Tracey Directory concerning tion the from believe that evidence in there would lead sports organizations other use individual persons potentially disput- other involved in test results of athletes launch another in- vestigation. Strikingly, drugs, posed able criminal which is the Illston it crime hypothetical, as a investigation. but the did not that’s under
965 Amendment, the pro- the and that is not Fourth the information Tamura should Agents in be re- private. remains cedures outlined to see authorized intermingled data jected. agents is no doubt that the encounter There expect who may it unexpectedly encounter or who violated the terms of the search warrant. unabated, but must seek the data review to proceed. on how
magistrate’s guidance impose impossible need not procedure This seizure, After on law enforcement. burdens government did not the advocate in be reviewed the data is secure by majority. The position adopted by manner and deliberate” an “informed justification for war- government’s sole rather magistrate, and detached” “neutral of the unlisted rantless seizure of data ex- being secreted for indiscriminate than view,” it “plain is that was which by officials. amination exceptions is of the limited one require- Fourth Amendment’s warrant procedure Tamura described Although majority ment. did not government’s check on the impose a would theory formed the question, reach this We ability in such behavior. engage government’s legal jus- entire basis in- are so “documents advised where its pri- tification for actions was the feasibly cannot be termingled mary proceedings focus of the before site,” offi- that law enforcement sorted on Therefore, important it district courts. is docu- hold[] “seal[] cers should to address it to demonstrate the soundness magis- pending approval ments ” by the district of the various decisions Id. at 595-96. As we noted: .... trate courts. required is that safeguard The essential must monitored wholesale removal is on the plain view doctrine based neutral, of a detached judgment probable assumption that if there is cause exer- magistrate. In the absence search, legally is for the and the officer judgment prior the sei- cise of such under the premises entitled to be at case, appears to us present zure object Amendment, Fourth seizure of an seizure, convenient though even that the plain that is contraband or evidence view circumstances, was unreason- under an invasion of of a does not involve crime able. privacy. Payton, 586-87, at U.S. (footnote omitted).11
Id. has iden- Supreme 1871. The Court S.Ct. Tamura pro- majority overrules that must be satis- tified several conditions cedure, to search allowing of an ob- plain before a view seizure fied magis- prior and seize documents without (1) conducting ject the officer upheld: is holding conflicts with approval. trate This lawfully arrive at the seizure must Tamura. object plainly position from which the (2) view; seen; plain
Therefore, object must be disagree respectfully I (3) character object’s incriminating majority’s govern- assertion that is, “immediately apparent,” that complied case with must be ment’s action *47 site, may adopted seal or hold ap- officers 11. The Tenth Circuit Tamura by magis- a proach specifically computer pending approval context in documents Carey, holding that: and limitations on trate of conditions through the documents. further search relevant docu- Where officers come across 1268, (10th Carey, F.3d 1275 Cir. U.S. v. 172 intermingled irrelevant docu- ments so 1999). feasibly sorted at ments that cannot be 966
the officer
probable
storage
must have
cause to
space
equivalent
is the
of 500
object
is
double-spaced
believe
contraband or evi-
A
pages
single
of text.
(4)
crime;
1,000
dence of a
gigabyte
storage space,
officer must
of
or
me-
of
right
object
gabytes,
500,000
have a lawful
access to the
equivalent
is the
of
Dickerson,
itself. Minnesota
v.
double-spaced
Storage
508
pages
U.S.
of text.
366, 375,
2130,
113 S.Ct.
The affidavit Searching computer systems highly is requirement The fundamental process technical requires specific which plain object doctrine expertise view is that the specialized equipment. view,” in “plain is, be “obvious to the many There are types computer so Sifuentes, senses.” United States v. today 'hardware software in use (4th Cir.1974). F.2d After an it impractical is bring the search colloquy, extensive Judge Illston concluded site all of the necessary technical manu- that the computer data seized specialized was not als and equipment to conduct “plain view.” Not thorough addition, factual con- search. In it erroneous, clearly clusion not undisput- also be necessary consult with com- completely ed record supports puter personnel her conclu- specific exper- who have sion under standard of review. type computer tise software application system or operating that is As pointed out, Illston this was being searched. not a ease in an incriminating which pho- similar evidence could be viewed on According government, the search screen; rather, best, a computer it in- computers at CDT could not be scrolling volved through completed were, thousands of rec- at the scene. There fact, ords none of which immediately However, were vi- computers. comput- one sible. application its for a search eventually er was isolated and data re- warrant, government justified remov- Special trieved. As Agent Novitsky’s computer al data and equipment on of activity memorandum stated: the basis that: At approximately 2:35 p.m., Abboud S/A many volume data on began working stored com- a computer with [a
puter systems storage devices will CDT employee], us [She] directed typically so large that will be high- computer in the “E” office labeled ly impractical to during search for data purposes of the search warrant and the execution of physical search of computer, sketch. At this [she] identi- the premises. single A megabyte sub-directory fied a “Tracey”, entitled *48 ysis thorough the examination off-site be- all of com- she said contained which drug fore the data at issue was discovered. sports puter documents CDT’s cursory A review of testing division. “plain inapplicable The view” doctrine is multiple fur- subdirectory indicated the it general in the electronic context because and several hundred ther subdirectories complete underlying at odds with the is by the files. As authorized computer theory Supreme the doctrine. of As it warrant, length of of time because explained: has Court to each file and the take search would theory of The of that doctrine consists CDT, it it would cause on intrusiveness extending nonpublic places such as complete of copy to make a was decided home, where searches seizures subdirectory “Tracey” in order presumptively un- without warrant are of in a search it the IRS-CID perform reasonable, au- police’s longstanding at a later time. offices thority to make seizures warrantless in a Novitsky explained later sub- Agent objects weapons of such as public places affidavit that: sequent justi- And the practical and contraband. subdirectory contained hundreds of This for that extension is desira- fication significant comput- amount of sparing police, viewing files and a bility of whose agents at consulting After with object er data. of a lawful the course specifically trained the scene legitimate search is as as it would have computers, we determined search public place, in a been inconvenience realistically search the en- could preserva- or to risk —to themselves directory in a reasonable onsite tire going tion to obtain evidence—of therefore made the amount of time. We a warrant. copy the entire subdi- determination Hicks, 326-27, at 480 U.S. 107 S.Ct.
rectory.
omitted).
(internal citations
examined,
Tracey Direc-
After was
pres-
of those considerations is
Neither
contain
itself was determined to
tory
the off-site
ent when we consider
examina-
files, that were not connected
countless
data. As the
tion
electronic
Major
drug
League
player
Baseball
essentially acknowledged in its search war-
at
testing
all.
computer
applications,
rant
examination
necessarily
circumstances,
It
the data
data is a forensic exercise.
these
Given
to in-
application
software
involves
“plain
cannot be considered
noted,
data;
soft-
external
terpret
has
without
Supreme
Court
view.” As
aid,
however,
appear
data
as
“If,
police
probable ware
would
lack
addition,
binary
object in
numbers.
plain
that an
cause
believe
case,
com-
requires
often
conducting
is
view
contraband without
the data.
specialists
decipher
if
object
ie.,
puter
some further search
—
simply
kind of
Electronic data
not the
incriminating
its
character is not immedi-
a natural extension of
plain
doctrine
evidence that forms
ately
view
apparent,
Dickerson,
discovery of
contra-
508 an officer’s
obvious
justify
cannot
its seizure.”
(alterations
public place.
fact
and band in
at
Coolidge, 403 U.S. S.Ct. 2022. However, suspicion the mere of criminal activity suspicion or the knowledge The off-site forensic examination of a of com- puter activity criminal is not simply data is cir- sufficient to sustain not one of those a seizure “plain plain cumstances that fits evidence under the view para- view” Indeed, digm. doctrine. As the Supreme hold otherwise Court has would clear, made abundantly “immediately to write out Fourth par- Amendment’s ticularity apparent” requirement requirement with means that the law respect to elec- probable tronic data enforcement officer particularized transform must have cause search warrants into to seize the that the general search war- officer rants, plain As with the observed view. the Court ex- authorized to indiscriminate, plained: conduct dragnet searches. probable We now hold that cause is re-
b quired. say To otherwise would be to “plain also failed to sustain its cut the view” doctrine loose from plain burden to excep- establish the view its practical theoretical moor- because, found, tion as the ings district courts .... Dispensing with the need for a incriminating character of the apart informa- warrant is worlds permitting from “immediately tion apparent.” It a lesser standard of cause for the sei- was clear under the testing protocol i.e., zure than warrant require, would positive necessarily tests did reflect probable standard of cause. No rea- use; steroid use apparent of nutritional son supple- why object should routinely ments —which is common in professional grounds, be seizable on lesser sports yield also positive. during seizure, false an unrelated search and —could addition, there are whole host than would have been needed to obtain a legitimate reasons for object individuals to be warrant for if that same it had prescribed products. steroid premises. been known CDT to be
969
Hicks,
326,
326-27,
Hicks,
321,
Baleo. 6 no information connect- ceded that had reasons, For I all these would hold to Baleo. ing any players the other government finding that the acted Indeed, in its affi- it made that clear both disregard rights in of the of the callous hearings. The affi- subsequent davits completely is players supported Judge Lloyd speculated provided to davit error, made record. district courts no linking might developed that evidence error, finding much less a clear that the positive who tested Baleo players first Ramsden factor was satisfied. The closely-knit professional “because of rightfully rejected gov- district courts also community,” speculated but baseball justification, and I “plain ernment’s view” positive suggest could test results majority’s respectfully disagree with the illegal per- source of significant “another rejecting procedures new rule the sound fact, the formance-enhancing drugs.” in Tamura. described had no evidence whatsoever government support theo- that it tendered either B any have
ry. The
did not
concerning
be in-
might
who
information
factor is
second Ramsden
whether
scheme;
fact,
in any
volved
distribution
an
interest
the movant has
individual
it had no idea
all.12
wants
and the need for the
he
submit
evi-
did not
majority
I agree with the
returned.
contradicting
dence
the affidavits indicat-
Players
courts that
Associ-
district
possibility
positives
of false
ing the
At
requirement.
ation
issue
satisfied
necessarily
positive
that a
result did
rights of the
are the Fourth Amendment
was no
illegal steroid use. There
indicate
know,
As
the Fourth Amend-
players.
specific target
investigation against
from unreasonable
protects people
ment
sought incrimina-
whom the
into areas in which
and seizures
searches
ting evidence.
pri-
legitimate expectation
have
States,
347,
vacy. Katz v.
389 U.S.
is not sufficient to es-
United
speculation
Mere
(1967)
360-61,
probable
v.
88 S.Ct.
19 L.Ed.2d
cause. United States
tablish
(9th Cir.1987).
J.,
Howard,
(Harlan,
concurring). There
no
828 F.2d
doubt that
the affected baseball
Perhaps the
had reasonable
justi-
justified, constitutionally-protected
had
that is not sufficient
suspicion, but
property,
privacy interest
fy
plain
a seizure under the
view doctrine.
example,
government engaged in
Court: From where?
For
hearing:
following colloquy at one
That's an. excellent
Counsel: From where?
honor,
why we need the evi-
question, and that is
evidence because
Counsel: Your
it's
illegal
distribution
it’s evidence of
dence.
people.
to other
steroids
including
computer
physi-
avoiding
data and the
personal
disclosure of
matters
However,
samples.
cal urine
I
clearly encompasses
believe that
medical information
majority significantly
confidentiality.”);
discounts and
and its
Yin v. Califor
(9th
nia,
Cir.1996)
importance
pri-
underestimates the
95 F.3d
(noting
*51
vacy interests at stake.
right
that “individuals have
protected
under the Due Process Clause of the Fifth
legitimate expectation
privacy
of
in
or Fourteenth
in
privacy
Amendments
information
medical
is as old as the Hip-
personal
of
medical information and rec
“[ojver
Indeed,
pocratic Oath.13
the last
Doe,
ords”);
(holding
14.
foray
HIPAA was far from
first
(1986),
Privacy
munications
Act
the Video
privacy protection.
into
theAs
United States
Privacy
(1988),
Protection Act
Department
and the Em-
of Health and Human Services
(1988).
ployee Polygraph
noted:
Act
Protection
In
1970s,
years, Congress
privacy
para-
In
the last ten
individual
was
and the Presi-
passage
mount
of the Fair
passed
legal privacy
Credit
dent have
additional
forged after
agreement
pursuant
Baseball.
promulgated
regulations
In the
concerning
test-
years
impasse
steroid
Department
HIPAA,
the United States
and,
discussed,
I
ing
have
called
emphasized
and Human Services
of Health
scope
anonymous testing
determine
privacy
maintaining
importance
end,
agree-
To that
problem.
information,
concluding
medical
part
ment
in relevant
that:
provided,
and that
right”
a fundamental
“[plrivacy is
informa-
right
privacy
personal
“[a]
(which
During
the 2003 season
shall
historically
expression
tion has
found
not include
spring training
include
but
82,464.
Fed.Reg.
law.”15 65
American
Players
all
post-season),
will be sub-
(one
ject to
initial test
one
two tests
authority,
sum,
controlling legal
given
*52
test conducted not
less than
follow-up
play-
that the baseball
question
is no
there
not
than
fol-
days
five and
more
seven
testing
in the random
who participated
ers
test) at
lowing
initial
unannounced
the
justified
privacy
of
the
expectation
had a
of
III
presence
times
the
Schedule
for
and,
particular,
that the test
test results
In
(“Survey Testing”).
addition
steroids
Of
disclosed.16
results would
be
have
the Office of Commissioner shall
circumstances,
course,
appropriate
under
Survey
right
the
to conduct additional
al-
justified
expectations
be
privacy
Testing
up
play-
in which
to 240
2003
Yin,
by
with test results. The record does not sum, In players significant the had a any reflect whether player individual privacy interest the medical records and even informed of testing his for results the physical specimens. There is no doubt sample year. players that the have an individual interest bargaining agreement collective in and a need for the property to be re- provisions contains numerous assuring Thus, turned. the second Ramsden factor confidentiality. For example, the section is satisfied. concerning testing protocol provides: the The confidentiality Player’s of par- the
ticipation Program is essential to C Program’s the success. Except pro- I agree majority with the the dis- vided Section Office trict players courts ir- would be Commissioner, Association, HPAC, injured reparably by denying return of personnel, Club and all of their mem- property. notes, As the majority gov- bers, affiliates, agents, consultants and already ernment has conceded that employees prohibited are from publicly adequate remedy have no at law disclosing Player’s information about the for redress their grievances. results, Evaluation, test diagno- Initial Therefore, the third and fourth Ramsden sis, Treatment Program (including factors are satisfied. Player whether a is either the Clini- Track), cal or prognosis Administrative reasons, For I agree these with the ma- or compliance with the Program. jority that the properly district courts ex- jurisdiction. collective bargaining agreement equitable However, ercised I specified in great detail manner of would hold that the district courts correct- and, collection data in particular ly found that all four Ramsden factors provid- ed that: disagree majori- were satisfied. I with the granting 41(g) motions. to affirm the properly actions ty government’s for Simply there is no reason players. put, rights of privacy respected to retain confidential medical bodily information IV fluids of citizens any are particularized who not under sus- to court decision a district review We activity. picion criminal jurisdiction under equitable exercise its abuse of 41(g) the deferential Rule under Ramsden, B F.3d
discretion standard.
fail
see
abuse
I not
already
my disagreement
I
detailed
have
by the district
in the decisions
discretion
majority’s
of the Ta-
with the
evisceration
jurisdic-
equitable
their
judges
exercise
that,
procedure.
I
mura
addition
with the
tion,
agree entirely
I
district
new
strongly disagree
procedure
with the
property should be
that the seized
courts
majority
Ta-
adopted by
supplant
returned.
majority proposes that
mura. The
computer data-
seize all
A
evidence,
containing intermingled
bases
Advisory Committee Notes
raised,
objection
if
is
must then
41(g)
to Rule
tell us that
1989 amendments
magistrate
material over to a
turn the
circum-
all
under
“reasonableness
majority’s
judge for review. Under
”
governing
be the
standard
should
stances
rule,
judge
magistrate
new
is
allow
determining
whether
should
if it
government to retain the data
returned,
added). Those
(emphasis
segregate
respon-
material
not feasible
*54
the
United
“[i]f
same notes state
altering
warrant without
the
sive
the
in an
property
has
need for the
States
a
of the information.
original character
prosecution, its retention
investigation or
reasonable,”
generally is
property
of the
1
eq-
...
circumstances
but that “in certain
remedy violates the “neu-
requir-
majority’s
might justify
uitable considerations
require-
destroy
magistrate”
detached
to return or
tral and
ing
the
Supreme
the
Court observed
ment. As
copies.”
all
Id.17
many
ago:
decades
hinges on
Deciding
the two
between
Amendment,
Fourth
the
point
conduct was
“whether the Government’s
grasped by zealous
which often is not
sufficiently
in this case
reprehensible
Ramsden,
officers,
it
law enforce-
is not that
denies
2 F.3d
warrant
this sanction.”
of the usual inferences
support
I
ment the
at
the actions
have discussed
327. As
evi-
clear,
men draw from
which reasonable
government’s
the
behavior was
make
protection
requir-
consists in
privacy
Its
sufficiently
and the
dence.
reprehensible
by a
ing
inferences be drawn
that those
players
who were neither
interests
magistrate instead
neutral and detached
implicated
nor
the warrant
named
judged by
engaged
officer
important
being
the
sufficiently
activity
criminal
387,
(9th
Fitzen,
Cir.1996),
388-89
propo
v.
80 F.3d
majority
cites for
17. The cases
seeking
property
person
return of
inappropriate
is
sition
return
himself,
an inno-
defendant
it as evi
the criminal
still needs
when
party,
the court found in both
analogous
cent
hardly
present
third
are
dence
Mills,
have a
didn't even
cases that
defendants
v.
991 F.2d
case.
both United States
property.
609,
(9th
1993),
ownership to
legitimate claim of
States
Cir.
and United
612-13
competitive
upon
in the often
at
a
enterprise
except
“proper post-
istrate
all
ferreting
by
aggrieved parties.”
out crime.
seizure motion
words,
made,
In other
if no
is
motion
there
States,
10, 13,
Johnson v.
United
U.S.
is
never
“informed and deliberate” ex-
(1948).
367, 92
68 S.Ct.
L.Ed. 436
probable
amination of
cause
a “neutral
protections
requiring
a “neutral
govern-
and detached magistrate.” The
magistrate”
detached
make “in-
simply keeps
ment
and searches the confi-
formed and deliberate determinations”
it
any suspicion
dential data
seized without
concerning probable cause are lost when
of criminal
how
activity.
precisely
But
is
magistrate’s
review comes after the
an honest citizen to
if
know his
her
material has been seized and searched.
confidential medical records have been
Supreme
explained Agui-
As the
Court
that he or
so
she
Texas,
1509,
lar
v.
378 U.S.
S.Ct.
may seek redress? The
search warrant
(1964):
Worse, majority’s holding, under the pletely the innocent citizen with no involve- presented seized material is not mag- underlying investigation to a ment the whose problem why strongly discouraged. This is one of the the reasons against parties use of search warrants third is documents,” creating “without or that not have notice new has been seized will data the confidential information can- quite It is unrelated protest. opportunity or distorting not be excised “without the this procedure how difficult to understand document,” original character the then law-abiding citizens right the protects is keep entitled to houses, persons, in their “to be secure unrelated confidential data without show- effects, against unreasonable papers, and ing suspicion. probable cause reasonable and seizures.” searches data, age holding In the of electronic case, if, representative as in this Even virtually eliminates Fourth Amendment had suf- “aggrieved party” of the innocent protections for confidential data. usu- seizure, innocent ficient notice of practice al is err on the side redaction majority now under the required citizen is protection privacy of those whose attorney and make a holding to hire unnecessarily jeopar- interests require “proper post-seizure motion” to majority Unfortunately, dized. tilts do what the Fourth direction, in the opposite en- balance do in the required it to first Amendment couraging magistrates govern- allow before a neutral and instance: establish if ment to retain all unrelated data magistrate probable cause detached original comingled data is some fashion. property. and search the exists to seize Placing magistrate’s restrictions abil- sum, majority’s holding, under ity allowing to redact information and of the Fourth is the eversion Amendment government to retain whole databases of complete. thus rendered information on the confidential electronic searches and sei- is entitled warrantless theory some data relevant to war- particular- cause or zures without probable “co-mingled” rant is defies common sense citizen bears suspicion, ized honest storage. and the realities of electronic data showing the cost and the burden advantages One of the chief of electronic government should have demonstrated storage large data is that it allows volumes seizing search- probable cause before very of information to be retained ing law-abiding personal prop- citizen’s space, computer small such as a hard erty. advantage of electronic drive. Another storage searching and data is the ease of database, examining A relational data. case, is unfortunately such in this one majority’s holding one issue organized stop requiring citizens to which the database does not according relationships be- probable force to establish accessed *56 any without the need for majority holding, even tween data items cause. Under and magistrate physical con- orientation if a neutral and detached consideration relationship. programs allow the after informed and deliberate Software cludes an of information. govern- that the examination and correlation examination the data cause, perfect probable provides not A relational database ment has established infor- segregating not limit the vehicle for non-relevant magistrate is directed to ease, a example, in contrary, magistrate if the mation. For sim- seizure. To the informa- yielded ple data cannot search would have determines that confidential warrant.19 separated responsive be tion the search separated, be or cannot search, guide suggest no suggests place their but I majority that I would 19. The CDT searching rely thing. functions searching agents duty such When data under a on However, an inherent feature of a relation- case at bar. Because had no notice al “comingled.” seizure, database is data is the governments’s objections no using power Instead of of a relational by were major filed the thirteen other database to protect legitimate privacy in- sports organizations, three unaffiliated terests, majority adopt would a rule entities, sports compe- business and three discouraging precluding not a Therefore, data —if —such titions whose was seized. use. majority’s approach, Under the magistrate a will never review that unau- government would be entitled to retain all majority thorized seizure under the hold- electronic “co-mingled.” information if ing. rule, majority’s Under the gov- Given “eo-mingling” is inherent ernment will also be to retain all of allowed databases, aspect of electronic this restric- it information seized from those who tion renders the Fourth Amendment a nul- object did because the information is co- lity in the electronic context. mingled cannot segregated and without logic
The circulate is and the result com- original changing its character. pletely predictable. The is There no need to is reinvent the wheel. entitled to seize a without war- procedure The Tamura has been part only rant “co-mingled” if it is and cannot our precedent court’s almost quarter for Then, be segregated. if party objects of century. provides practical Tamura seizure, presented the data must be and sensible method govern- which the a magistrate judge who must release it ment obtain data to it right- which is back to if the magis- intact fully violating entitled without the constitu- judge trate determines that irrelevant tional rights honest citizens. We should “co-mingled” data is segre- and cannot be Tamura, reaffirm it. supplant gated. purely illusory The exercise is can only to an lead intellectual cul-de-sac.
The Fourth
probable
Amendment’s
cause
V
requirement
neatly
entirely
elimi-
nated.
reasons,
For similar
I would also affirm
Judge
quash
May
Illston’s decision to
majority
countenances this
6, 2004, subpoenas.
majority
con-
procedure,
encourages
but
it.
I cannot
tends that
Illston
her
abused
discre-
agree.
In the
age, magistrate
electronic
tion by resting her
quash
decision to
judges
required
should be
use all
avail-
subpoenas
legally
grounds,
insufficient
able tools—software as well as black mark-
citing
Jury Subpoenas
In re Grand
Dated
er—to redact confidential information not
(9th
Cir.1991),
Dec.
being party searched. CDT—a third ment. entity suspected crime—offered to
977 by certainly for the record and cannot subpoenas ported and seeking yond warrants time. information at the same be said to be an abuse of discretion. the same previously, As discussed
alternately subpoenas warrants sought VI information from highly sensitive to obtain I majority’s concur conclusion Major player and every League Baseball standing appeal that the media has to after keep to that information to continue I to records. file motion unseal also Further, as being return it. ordered to that, under agree pre- the circumstances noted, no there were substanti- previously case, by sented this the motion should be of a warrant justifying ated use risks referred to the district courts on remand. documentary from evidence obtain I I separately write to comment on what 59.1(b). § 28 C.F.R. party third under parties regrettable by view as a effort both addition, nothing is worth it in the district courts to circumvent the much May subpoenas requested 6 procedures established to balance we have sought April 30 information same rights press the First Amendment The affidavit prior search warrants. confidentiality required is warrant from April to obtain the 30 search proceedings.20 Specifically, some criminal material Judge Lloyd that the was averred proceed- I note that all of the district court necessary part because records ings par- were closed insistence of charged link to the defendants “establish a ties, press public. without notice to grand case.” It is an abuse jury grand jury subpoenas process use instances, In some courtroom closures develop post-indictment trial material. prior obtained without notice to the were See, Jury Subpoena e.g., In Re Grand example, For district court itself. (Si- January Dated Duces Tecum transcript hearings of one of the before (2d Cir.1985) (timing méis), F.2d judges one of the district court reflects the indictment, issued after subpoena, first following colloquy: suggested purpose that its was to obtain that, you Why locking is are Court: material). The Baleo indictments trial the door? Therefore, in February. were returned filed Clerk: Since the case was under jury May grand issuance of seal. following on the heels of the subpoena, * * * this all under seal? Court: Is application search warrant for the same hearings You under seal. want indicating partial pur- that its information seal There no motion made to was Baleo, sug- pose develop links to hearing. you I wasn’t aware wanted grand jury process. gests an abuse of way. case, history of this the dis- Given the honor, plead- Your we filed the Counsel: filing trict conclusion that court’s proceed- seal. think this ings under We of a subpoenas these was “the culmination seal. The informa- ing should be under series of actions taken is highly tion issue confidential. the MLBPA prevent order colloquy, After the court allowed some attempt quash to move to the Janu- CDT’s sealed, admon- sup- the courtroom but ary subpoenas” fully March motion, subsequent Players and a motion and the Associa- denied that sought argument tion also to have oral for reconsideration. appeals public. We closed to the court *58 978 (9th Court, appropriate 940,
ished counsel to file an motion 156 District F.3d 946 Cir. 1998) if they any pro- II, further (quoting wished courtroom Press-Enterprise 478 9-10, 2735). ceedings to be How- at closed future. U.S. 106 S.Ct. Provisions ever, public press neither the nor the tailoring may were for narrow include later re notified that the were to transcripts, doors be locked lease of or redacted tran and the public barred. Id. In scripts. making at 947.21 its deci to proceedings, sion close trial court “[t]he amendment, press “Under first ‘along must articulate this interest with presumed right and public have a of findings specific enough that reviewing proceedings access to court docu- and court can determine whether closure Oregonian ments.” Pub. Co. v. District ” properly order was entered.’ Id. at 946- (9th Court, Cir.1990) 1462, 920 F.2d 1465 procedural steps 47. None of these were (citing Press-Enterprise Co. Superior v. undertaken the district courts. Court, 510, 819, 464 U.S. 104 S.Ct. 78 (1984))(“Press-Enterprise sure, L.Ed.2d right To be of access to court I”). presumed right “This can proceedings be over- not Id. absolute. at 946. overriding right come an parties legitimate or inter- Both privacy have inter- est on findings ‘based is es- to protect. closure ests The Federal Rules of preserve sential to higher values and is Criminal require Procedure “matters af- ” narrowly tailored fecting jury to serve that interest.’ a grand proceeding to be I, (quoting Press-Enterprise Id. necessary prevent U.S. closed the extent 819) 104 S.Ct. occurring disclosure matters before a 6(e)(5). grand jury.” Fed.R.Crim.P. In In determining questions public and addition, discussed, as I have the athletes courts, press access to the courts are to represented by Players Association right examine whether a attaches to a very strong privacy have interest their particular proceeding, using the Supreme However, medical records. there are non- “logic experience” Court’s test articu- grand jury case, materials involved lated in Press-Enterprise v. Superior there proceedings are some that do Court the County Riv- of California for appear to have involved confidential erside, 1, 8-9, 478 U.S. 106 S.Ct. material.22 (1986) II”). L.Ed.2d (“Press-Enterprise “If a proceeding parts case, both fulfills these are best matters con- test, qualified First Amendment right sidered first instance the district arises, court, access ‘only by be overcome public with notice so that the First overriding interest based findings right Amendment be bal- access closure is essential preserve higher val- privacy anced with the interests of the narrowly ues and is parties. tailored to serve that Unfortunately, parties pre- ” Newspapers, interest.’ Phoenix Inc. v. hearing sented closure and sealing record Indeed, transcripts proceedings 21. actually of court position have taken and we do militating "must be released when factors position take the there isn’t need to longer in favor of closure no exist.” Id. at sealed, proceedings actually have these 947-48. paramount that is because interest in having proceedings public actual in court- government, proceed- in at least one However, public.” govern- rooms held in ing, might op- seemed to indicate that object formally sealing ment did not material, pose unsealing govern- some transcript hearing, transcript of that and the stating ment counsel before Mahan: has, date, been sealed. regulation policy, "As a matter of DOJ *59 courts, district accompli as a fait press public. Now notice to
without motion un- remanded the
that we have
seal, may be addressed. this issue
VII of alleged use ster- discussions much is made players,
oids baseball game.” Even integrity “the
about legal of our important integrity is the
more has become
system. Perhaps baseball Shadows,”23 but by a “Game
consumed no for the reason “Prosecution of Shadows.”
engage entirely right were judges
The district the thou- return
order wrong- private medical records
sands pretext and artifice.
fully use of the district
I would affirm orders respectfully dissent from
court and must I contrary con- majority’s conclusion. of the motion to unseal
cur in the remand
records. Petitioner, LIN,
Zi-Xing
v. GONZALES, Attorney
Alberto R. Respondent.
General,
No. 04-73860. Appeals, Court of
United States
Ninth Circuit. Oct. 2006.*
Submitted
Filed Jan. * Williams, unanimously suit- panel finds case This 23. Mark and Lance Fainaru-Wada argument. oral See able decision without (2006). Game Shadows 34(a)(2). R.App. Fed. P. notes agent of all review during pursuant to this the remand portions were nei- dressed 51. Sensitive of the records argument at opinion. ther revealed nor discussed oral Section VII. The motion See infra supra court. See note 49. before this separately decided in the will need to be of California. Northern District District of California and In the Central Nevada, the motion can be ad- District of then, THOMAS, Judge, concurring magis- in made a motion. Even if the Circuit part dissenting part. trate concluded that the irrelevant data “co-mingled,” government would extremely able district One of the three be entitled to retain the confidential medi- rejected govern- judges court who theory cal records. This new was not best, argument summarized it stat- ment’s by any any argued party, presented nor ing: happened to the Fourth “What judge any during time district it repealed Amendment? Was somehow?” hotly con- protracted course these Although it had a search warrant proceedings. tested Major concerning League eleven for data government players, Baseball scope majority’s holding The of the new thousands of medical records and test re- digital age greater; could not be it Major involving every single League sults removes confidential records electronic government Baseball The did not player. protections from the Fourth Amend- there, stop seizing thousands of other med- holding squarely ment. The also conflicts ical records for individuals in thirteen oth- procedural with the sound and sensible major unaf- sports organizations, er three v. United States protections detailed in entities, sports filiated and three business Tamura, (9th Cir.1982), F.2d competitions. now seeks which direct the to seal and to retain all of the medical information it containing intermingled hold documents persons obtained about who were not pending approval magistrate data of a of a subject any inquiry. criminal further search. high. The stakes this case are agree I findings with the careful right claims the to search— conclusions of the judges three district warrant or a suspicion without even rejected who the government’s position. activity any patient’s criminal confiden- — reason, For that pro- and because of the comput- tial medical record contained consequences majority’s opin- found directory long er a legitimate so as has privacy ion on the of medical records any warrant or subpoena other individ- States, throughout the I respectful- United patient’s ual record that be contained ly dissent. part comput- as of data stored on the same government attempts justify er. The I theory breathtaking expan- novel on a doctrine, “plain sion of the view” which investigation ostensibly this case clearly application has no to intermingled Bay involved Area Lab Co-Operative, pop- private electronic data. ularly govern- referenced as “Baleo.” The suspected distributing ment Baleo of ille- government’s position As radical athletes, gal including steroids certain is, majority goes even further. It Major League players. some Baseball holds war- —without that, The government pursuant knew to a suspicion rant or even a of criminal activi- seize, retain, bargaining agreement collective between ty may and view all confi- — Major League Players Baseball Associ- dential records in electronic database “MLBPA”) (“Players ation Association” or private responsive on which data to a war-