Fed Court Gmail opinion creates eDiscovery trap for both sides

The courts disagree on how far and wide email searches may extend. But a New York judge has flung the door wide open, granting unfettered access to a Gmail account.

Habeas Hard Drive is unqualified to challenge Judge Gabriel W. Gorenstein’s observation that there’s “no constitutionally significant difference” between the seizure of an email account, and the seizure of “computers and other storage devices.”

But on a practical level, Habeas Hard Drive hopes Judge Gorenstein’s opinion does not become the controlling one. The judge may as well have ordered both sides to spend more time, more money, and work much harder than they need to.

A Gmail account can be the gateway to personal data far beyond the scope of the judge’s order. The account owner’s word processing, spreadsheets, and other documents may become accessible, as well as the YouTube history (with comments), destinations mapped, social media connections, calendar, voicemail, and other personal data – and this is a partial list, given Google’s combination of services and retained information.

While this sounds like a bonanza for prosecutors, it can quickly become everyone’s worst nightmare. Both practitioners should be working to limit such an order, which has the potential to drown everyone in a downpour of irrelevant data.

If the true target is email exchanged between certain parties, the search should be limited to “communications between people named herein, and delivered via SMTP” (simple mail transport protocol).

If the intent is to search beyond the Google email communication, discovery orders should specify by name each additional Google application attached to a Gmail account, i.e. “voice messages,” or “calendar,” or “Google map inquiries,” et cetera. The respondent should also work to identify what parts of the account are relevant and why, and petition to limit production to that relevant evidence.

Wholesale seizure of any email account will be more costly and less productive than targeted searching. But seizing a Gmail account creates a unique opportunity for an expensive fishing expedition. Cost may be a secondary consideration in this case, in which the government is conducting a money laundering investigation. Leaving aside privacy questions, which are many, Habeas Hard Drive suggests that an open-ended journey into Gmail, and similar services, is something to be avoided unless time and money are no object.

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