White Collar Defense Update

The dirty details of this presently unfolding scandal do not require repetition on this page. Google will lead you to all that you want (and don't want) to know about these sordid details. However, you won't read much of the following advice in the mainstream media. So, here we go ...

1) Discuss business on corporate e-mail accounts only

The FBI's cyberstalking investigation led to a personal Gmail account, which the government accessed and ultimately resulted in the downfall of General Patraeus. A recent Google transparency report revealed that it has fully or partially complied with at least 90% of the U.S. government's nearly 8,000 requests for user data during the first half of 2012. http://www.google.com/transparencyreport/userdata requests/ The lesson learned is that it is much easier for the government to get e-mails from Gmail, then from your own IT department. This is information that (1) you do not control; (2) might not have notice that the government has requested access to; and (3) do not have say whether the communications are protected by some privilege or confidentiality clause. As a corporation, there are many things that you might want to keep quiet: trade secrets, potential business deals, future products, etc. As Google does not have your company's interests at heart, having employees discuss these developments through personal e-mail accounts could lead to their public disclosure. Further, you would receive no notice that the information has been sought out by the government. Therefore, reminding your employees to keep business e-mails on corporate e-mail accounts will prevent your company's private issues from going public.

2) Be careful who you are e-friends with

While investigating the cyberstalking complaint, the e-mails of the victim led to the discovery of potentially inappropriate e-mails of another senior general who was uninvolved in the original cyberstalking charge. Now that senior general is being investigated. The lesson learned here is that the government, while investigating someone else on a matter unrelated to you, could come to learn information that would place you or your corporation under surveillance or investigation. Therefore it is imperative that not only you keep your corporate and personal e-mails separate (see point 1), but also that you know the person who are sending the e-mails to. A joke in poor taste to someone under surveillance could result in you landing in hot water.

Continue reading after the jump.

Continue reading "Attennnnn-tion! 4 Important Lessons From the General Petraeus Scandal" »

Remember how new telecommunication technologies were supposed to make life better? A recent Florida federal court decision reminds us that these new technologies can also come back to haunt you if you're not careful. In United States v. Stirling, the United States District Court for the Southern District of Florida granted John Philip Stirling - charged with two counts of drug smuggling - a new trial because the government failed to disclose to the defense that incriminating Skype chats could be extracted from a disk provided to the defense before trial. (Skype is a voice-over-Internet Protocol that allows users to communicate with others by voice, video, and instant messaging over the Internet.) Significantly, the court found that the prosecution technically complied with the Federal Rules of Criminal Procedure by turning over to the defense a disk containing an exact replica of the defendant's laptop computer.

Notwithstanding the prosecution's technical compliance with criminal discovery rules, the court ruled that the "interest of justice" required that Mr. Stirling be granted a new trial because the prosecution never disclosed to the defense that incriminating Skype chats could be extracted from the disk produced. Mr. Stirling took the stand in his defense and the prosecution was able to significantly discredit his testimony with the use of the Skype chats. Unaware of the Skype chats, defense counsel was unable to properly prepare Mr. Stirling and competently advise him regarding testifying in his defense. Mr. Stirling was convicted on both counts.

The disk contained visible folders and a non-visible "file" consisting of the Skpe chats. In fact, the prosecution was only able to retrieve the Skype chats by hiring a computer forensics expert who had to download a program to recover the chats. Mr. Stirling argued in his motion for a new trial that "[p]roduction of something in a manner which is unintelligible is really not production." The court agreed. The court reasoned that the governing standard found in the Federal Rules of Civil Procedure should apply in the case, which required the prosecution to produce electronically stored information or ESI in a reasonably usable form. The court's reasoning appeared to be based, in part, upon the defendant's financial situation as indigent and unable to hire a computer forensics expert. In other words, the prosecution's failure to disclose the Skype chats was unfair.

This case is another reminder that careful consideration needs to be paid to ESI turned over by the government following a seizure of computer files. Ideally, a defendant will be able to hire a computer forensics expert who can decipher files such as Skype that contain communications in a format that is sometimes not easily retrieved or even identifiable. In any event, in this brave new world dominated by new technologies, defense counsel would be wise to discuss with any client all potential communications that could be recorded and included in ESI seized by the government.