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Computer searches under F.R.C.P. 34(a) by private litigants; a Fourth Amendment issue?

By John Wesley Hall, Jr.

Under the 2006 amendments to F.R.C.P. 34(a), it is now possible in a civil case for a litigant to get access to an opponent's computer or a computer network to conduct their own search for electronic evidence if certain standards are met. See Nolan M. Goldberg, Is Your Data Wide Open to Your Opponent?, in the NLJ. This is an interesting article, and it discusses case law and protective measures to insure that the computer search does not go too far or that protected or irrelevant information is not disclosed. One thing not mentioned that maybe should have been is whether a court authorized search of a computer should be governed by the Fourth Amendment. It is a private search if a private litigant is involved, but, if court approval for such a search is sought, is not the Fourth Amendment implicated because an arm of the government authorized it? The standards mentioned in the case law would appear to satisfy at least an administrative search-type probable cause standard: While the amendment to Fed...continue to full post

Full post as published by Fourth Amendment on March 13, 2008 (boomark / email).