March's Notable Cases and Events in E-Discovery

1. In DR Distributors, LLC v. 21 Century Smoking, Inc., 2021 WL 185082 (N.D. Ill. Jan. 19, 2021), U.S. District Judge Iain D. Johnston of the Northern District of Illinois entered a variety of curative measures and sanctions against Defendants and Defendants’ former counsel for failure to timely collect and produce ESI and for spoliation.

In this trademark case, Plaintiff, an electronic cigarette company, brought suit against a competitor and its owner, alleging that they misappropriated Plaintiff’s registered trademark. Id. at *7. Plaintiff alleged that Defendants inserted a “metatag” onto their website (not visible in an internet browser but picked up by search engines) containing Plaintiff’s own trademark for the purpose of driving web traffic away from the Plaintiff. Id. at *10. Defendants brought counterclaims alleging that Plaintiff made defamatory remarks at a tradeshow. Id. at *7.

After numerous discovery disputes and hearings, Plaintiff brought a motion seeking “nuclear” sanctions — namely, defaulting Defendants and dismissing their counterclaims — against Defendants and Defendants’ former counsel alleging “failure to timely produce ESI and for the spoliation of ESI as well as other alleged misdeeds.” Id at *3. Plaintiff sought sanctions based on “civil contempt, inherent authority, 28 U.S.C. § 1927, and Federal Rules of Civil Procedure 11, 26(g), 37, and 56(h).” The court held a five-day evidentiary hearing on the motion, which included testimony from Defendants, Defendants’ former counsel, and an ESI vendor used by Defendants. Id. at *8.

Judge Johnston provided an exhaustive factual background detailing the multiple failures on the part of Defendants and Defendant’s former counsel to explain his decision. Discovery issues arose early in the matter. First, former counsel failed to conduct a custodial interview to identify ESI. Id. at *11, 19. As Judge Johnston noted, “a reasonable custodian interview can require counsel to cross-examine the client and test the accuracy of the client’s response to document requests to ensure that all appropriate sources of data have been searched and that responsive ESI has been collected — and eventually reviewed and produced.” Id. at 52. It is no excuse for attorneys to “not understand” computers in failing to conduct a thorough custodial interview. Id. at *51. Here, former counsel did not understand the difference between cloud-based and locally stored emails. Id. at *19. Judge Johnston explained that the primary basis for sanctions against one former defense counsel was the counsel’s failure to understand “basic elements” of ESI and rely entirely on a client to identify ESI — especially after having reason to question the client’s credibility.

Judge Johnston also found that former defense counsel failed to issue a written document hold and only orally communicated to defendants the requirement to preserve documents. Id. at *11-12, 19. The “standard and recognized method to ensure clients have been adequately informed of their preservation duties is through a written litigation hold letter,” and attorneys must provide “specific instructions detailing where ESI might be stored and what steps the client may need to take to preserve it.” Id. at 54. Judge Johnston specifically noted that “an adequate hold notice must include a warning to disable autodelete functions. Id. at *55. “[A]ttorneys and parties that ignore their obligations to reasonably investigate the possibility of or disregard autodelete functions run the risk of destroying relevant evidence and visiting prejudice upon their litigation adversaries, thereby earning sanctions. A litigation hold — whether verbal or written — that fails to instruct a party to disable autodeletion functions is not much of a litigation hold.” Id. at *56. Finally, Judge Johnston noted that the “issuance of a litigation hold does not end counsel’s duty in preserving ESI. ... They must continue to monitor and supervise or participate in a party’s efforts to comply with the duty to preserve.” Id. at *56.

Judge Johnston detailed another early failure when former defense counsel allowed defendants to “self-collect” ESI. Id. at *57. “Custodian self-collection occurs when counsel direct their clients to identify, preserve, collect, and produce documents and electronic information in response to discovery requests.” Id. Judge Johnston identified several failure points in permitting clients to self-collect ESI. First “is the client’s failure to identify all sources of responsive information.” Second, “is the client’s failure to preserve evidence.” Id. at *58. Third is that the “client may not find or provide to counsel all responsive documents and ESI.” Fourth, “that clients who self-collect may not fully document how they conducted their searches.” Id. at *59. Judge Johnston cautioned that “[c]lients may fail to find or provide all responsive information for the additional reason of self-interest.” Despite noting the many potentials for failure in self-collection, Judge Johnston recognized that self-collection may be acceptable where counsel provides an adequate legal hold notice, properly instructs the client on searches, conducts a reasonable inquiry to ensure that the self-collection “resulted in a responsive production of information, and document[s] their efforts.” Id. at *60.

Judge Johnston diagnosed the discovery issues as stemming from three primary sources: (1) the lack of competence in counsel, (2) that the client was not honest and candid with counsel, and (3) that counsel failed to properly document the processes used. Id at *63–68. With respect to competence, Judge Johnston noted that “[c]ounsel must be competent in their knowledge and ability to identify, preserve, collect, review, and produce ESI.” Id. at *63. He found fault with the former defense counsel’s “very limited scope of work” given to the ESI vendor. With respect to Defendant’s candor, Judge Johnston noted that one Defendant was knowledgeable about the relevant computer systems and had a duty to correct former defense counsel’s misapprehension that collecting data from Defendants’ computer hard drives would be sufficient to collect data in Defendant’s cloud-based email accounts. Id. at *67. Finally, Judge Johnston explained that counsel’s failure to document the ESI process meant that counsel was unable to “accurately explain and defend their actions taken.” Id. at *68.
Judge Johnston then turned to a discussion of the court’s power to sanction. He held that because Defendants’ conduct could be adequately sanctioned under the Federal Rules of Civil Procedure or a specific statute, he would not rely on the court’s inherent authority or civil contempt to impose sanctions. Id. at *69. He also declined to impose sanctions under Fed. R. Civ P. 11 because that rule does not allow for discovery sanctions, or under Fed. R. Civ P. 56(h). Id. at *70. Nor did Judge Johnston impose sanctions under 28 U.S.C. § 1927, which allows courts to sanction attorneys for unreasonably protracting litigation. Id. at *71.

Judge Johnston did impose sanctions under Fed. R. Civ P. 26(g), 37(a), 37(b), and 37(c). Rule 26(g) requires disclosures and discovery responses to be made upon reasonable inquiry, with disclosures being complete and correct when made and discovery responses being consistent with the Federal Rules of Civil Procedure. Fed. R. Civ. P. 26(g)(1)(A),(B)(i). Judge Johnston found sanctions appropriate because Defendants’ initial disclosures did not provide relevant documents or accurate information about the location of ESI, which should have been identified after a reasonable inquiry, and were not updated when counsel affirmatively learned of the issue. Id. at * 73. He found that one of the Defendants and one of Defendants’ former counsel must pay Plaintiff’s attorneys’ fees under this rule because counsel failed to perform a custodial interview and the Defendant failed to be candid with counsel about the location of his ESI. Id. at *81-82.

Under Rule 37(a), a party can be ordered to pay reasonable expenses, including attorneys’ fees, where it provides incomplete or evasive disclosures, answers to interrogatories, or responses to requests to produce. Id. at *74. Judge Johnston noted that sanctions were appropriate under this rule because Defendants failed to produce documents that it was obligated to produce and failed to search other documents with the agreed-on terms before the close of fact discovery. Accordingly, he ordered Defendants to produce all responsive documents requested by Plaintiff and to pay Plaintiff’s reasonable expenses, including attorneys’ fees. Id. at *83.

Under Rule 37(b), sanctions can be ordered when a party fails to obey an order to provide or permit discovery, including an order under Rule 37(a). Id. at *74. Judge Johnston noted that sanctions were appropriate under this rule because Defendants failed to comply with one of the court’s discovery orders by claiming that documents did not exist when, in fact, they did exist. Accordingly, he ordered that one of the Defendants and one of Defendants’ former counsel pay attorney’s fees and barred Defendants from using any of the documents or information contained in the documents that were not produced, in addition to other sanctions. Judge Johnston found these sanctions to be tailored to the severity of Defendants’ and counsel’s conduct and sufficient to remedy the prejudice Plaintiff suffered. Id. at *85.

Under Rule 37(c), sanctions must be awarded when a party fails to provide information that is required to be disclosed under Rule 26(a) or 26(e) and that failure is neither substantially justified nor harmless. Id. at *86. Judge Johnston noted that significant and material ESI that should have been produced during discovery either was not produced at all or was produced after the close of discovery. As sanctions, he ordered that Defendants pay attorney’s fees, that Defendants were barred from using any of the ESI that was produced late, and that the fact finders would be informed of Defendants’ failures. Id. at *87.

Finally, Judge Johnston ordered former defense counsel to complete at least eight hours of continuing legal education coursework relating to e-discovery by the end of 2021. Id. at *4.

Ultimately, although Judge Johnston issued severe sanctions, he declined to impose default and dismissal: “Default and dismissal are the most extreme sanctions available.” Id. at *97. Here, Judge Johnston found that less drastic sanctions remediated the prejudice to Plaintiff, and there was no need, therefore, to use default and dismissal.

2. In Haroun v. ThoughtWorks, Inc., 2020 WL 6828490, 20-cv-0100 (LJL) (S.D.N.Y. Oct. 7, 2020), District Court Judge Lewis J. Liman denied Plaintiff’s motion seeking information regarding Defendants’ collection and searching of ESI because Plaintiff had not identified any problems with the Defendants’ discovery efforts.

Plaintiff sought an order compelling Defendants to identify all sources of their ESI to determine (i) where potentially responsive documents were located and (ii) whether Defendants were taking adequate measures to search for and review responsive documents. Id. at *1. Plaintiff asserted that “to determine whether all relevant documents are being searched,” Plaintiff needed “to know not just the sources that are being searched, but also whether documents can or have been deleted from those sources and, if so, whether they are available within other sources of ESI that are not being searched.”

Judge Liman noted that Plaintiff’s request was in the nature of “discovery on discovery,” that is, documents and information not directly relevant to a claim or defense but instead collateral.

Judge Liman explained that “when the discovery sought is collateral to the relevant issues (i.e., discovery on discovery), the party seeking the discovery must provide an ‘adequate factual basis’ to justify the discovery, and the Court must closely scrutinize the request ‘in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.’ ” Id. at *1 (quoting Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 2016 WL 3906712, at *7 (S.D.N.Y. July 14, 2016)). If the requesting party shows the relevance of the information sought or an adequate factual basis for the collateral issue discovery, the burden falls on the responding party to justify curtailing discovery. Judge Liman noted that counsel is ordinarily “not required to disclose the manner in which documents are collected, reviewed and produced in response to a discovery request.”

Judge Liman described counsel’s obligations under the Federal Rules of Civil Procedure, including Rule 26(g) requiring counsel to have made a “reasonable inquiry,” and that to the best of their knowledge, information, and belief, the discovery response is “complete and correct at the time it is made.” Fed. R. Civ. P. 26(g)(A). In addition, “attorneys, as officers of the court, are expected to comply with Rules 26 and 34 in connection with their search, collection, review and production of documents, including ESI.” Judge Liman noted that “[a]s a practical matter, the party who engages in the collection, review and production of ESI without conferring in advance with her adversary proceeds at her peril. If it turns out that the production was not reasonable and proportional, she might have to do it again. But, if a party decides not to turn over the sources of its ESI, the court may not require it to do so without an adequate factual basis.”

Judge Liman found that Plaintiff had not made the required showing to justify the discovery sought. In particular, Plaintiff had not identified any gaps in Defendants’ production of ESI, any reason to believe that documents had been deleted, or any basis for asserting that Defendants were not searching all relevant and reasonably available sources of ESI that would contain material responsive to Plaintiff’s document requests. Id. at 2.

Judge Liman also found that Plaintiff did not need discovery related to Defendants’ sources of ESI because Plaintiff could inquire at deposition about both the documents that had been produced and those that had not been produced and could review the document production itself for obvious gaps. Judge Liman noted that Plaintiff could have a basis for “discovery on discovery” if it could create an appropriate record.

3. In Optrics v. Barracuda Networks Inc., 2021 WL 411349, 17-cv-04977-RS (N.D. Cal. Feb. 4, 2021), Magistrate Judge Thomas S. Hixson granted Defendant’s motion for monetary sanctions against Plaintiff and its former counsel to compensate Defendant for fees and costs incurred as a result of Plaintiffs’ prolonged discovery misconduct and repeated violations of court orders.

In this dispute involving claims and counterclaims for trademark infringement, breach of contract, and deceptive business practices, Plaintiff’s “failures to comply with discovery orders and obligations were protracted and plentiful, with the problems going on for over a year.” Id. at *2. Issues emerged early on, as Plaintiff’s initial data collection efforts were limited to self-collection, and Plaintiff failed to retain an e-discovery vendor until approximately two months after Defendant had served its first set of document requests.

Moreover, rather than relying on its e-discovery vendor to drive data collection, Plaintiff’s custodians “personally ran keyword searches” through their emails using a basic search function, which, as one custodian acknowledged, did not search the content of attachments and printed to PDF only those emails the custodian deemed responsive to Defendant’s requests based on their subject line alone. Id. at *5. In short, as Magistrate Judge Hixson put it, “[a] client-led search like the one here, where [Plaintiff] had no experience with electronic discovery, was not reasonable.” Id. at *7.

Additionally, as Plaintiff’s Rule 30(b)(6) designee testified, even though Plaintiff knew it was under threat of litigation with Defendant since 2013, it never issued a litigation hold instructing its employees not to delete any data related to Defendant. Similarly, prior to 2017, Plaintiff had “no system in place for archiving emails,” and “[e]ven when using [archiving software], individual backups were retained for only 30 days,” a policy that remained in place “[e]ven after months of discovery disputes.” According to Magistrate Judge Hixson, Plaintiff’s “failure to put in place a litigation hold or even to check whether it could extend the 30-day retention period for its data storage software was a substantial violation of its duty to preserve documents and potentially led to a loss of relevant data.” Id. at *13.

Magistrate Judge Hixon described Plaintiff’s repeated failures to comply with its discovery obligations and the court’s discovery orders, despite numerous extensions of its time to comply with the same. Plaintiff failed to produce all of the documents it had agreed to produce and failed to adequately prepare its witnesses for document custodian 30(b)(6) depositions. Id. at *3. Plaintiffs also failed produce a privilege log and declarations explaining why certain categories of documents do not exist. Id. at *6. Ultimately, Magistrate Judge Hixson gave Defendant “the green light to move for sanctions,” and Defendant did so. Id. at *4.

Based on the Plaintiff’s discovery conduct, which could be traced back before the litigation, continued throughout discovery, and represented a “flagrant indifference” to the court’s orders, Magistrate Judge Hixson concluded that “[s]anctions [were] warranted here, both under Rule 37 and pursuant to the Court’s inherent power.” Id. at *6. Magistrate Judge Hixon found that Plaintiff “both unreasonably delayed and also prevented the completion of full discovery” and constituted bad faith. Id. at *6-7. In particular, Magistrate Judge Hixson held that because Plaintiff’s conduct “forced [Defendant] to incur additional attorneys’ fees” and “forced the Court to expend considerable resources beyond what was necessary,” “monetary sanctions [were] clearly warranted[.]”

Magistrate Judge Hixon next turned to the amount of fees to be awarded. He noted that fee awards are subject to two conditions under Fed. R. Civ. P. 37(b)(2)(C): They must be limited to fees directly resulting from the violation and must be reasonable. Id. at *8. Defendant argued that it had incurred numerous categories of fees as a result of Plaintiff’s conduct, including fees for reviewing Plaintiff’s deficient productions, custodial depositions, motion practice and court hearings, nonparty discovery, and bringing the motion for sanctions. Id. at 7. Magistrate Judge Hixson addressed each of these categories, awarding the full amount requested for some and half of the fees requested for others. Id. at *9-10. Ultimately, Magistrate Judge Hixson awarded fees and costs to Defendant in the amount of $202,035, which he concluded was “a reasonable and appropriate deterrent given the extraordinary discovery misconduct and repeated violations of Court orders in this case.” Id. at *19. Further, because, in Magistrate Judge Hixson’s view, “both [Plaintiff] and its former counsel failed in their responsibilities,” he imposed these monetary sanctions “jointly and severally” against Plaintiff and its former counsel. Id. at *21-22.

4. In Thomas v. City of New York, 336 F.R.D. 1 (E.D.N.Y. 2020), Magistrate Judge Sanket J. Bulsara granted Plaintiff’s motion to compel production of ESI, including emails, text messages, and GroupMe chats, where Defendants failed to overcome Plaintiff’s showing that the requested discovery was not relevant and proportional and did not show that the discovery was not reasonably accessible because of undue burden or cost.

Plaintiff in this civil rights action sought ESI from Defendants, including emails, text messages, and GroupMe chats. Id. at *1. Defendants agreed to collect and produce certain categories of the requested documents from a subset of Defendants but opposed any additional collections or productions. Id. at *1-*2. In response, Plaintiff filed a motion to compel production of the remaining documents it had requested.

Magistrate Judge Bulsara began by setting forth the general standard under Rule 26 of the Federal Rules of Civil Procedure: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” If the requests are relevant and proportional, the objecting party has the burden of showing that the requests should nonetheless be denied. As to ESI specifically, to avoid production, “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.”

First, as to relevance and proportionality, Defendants argued that having collected a subset of what Plaintiff requested from some defendants, any additional collection would not yield any unique or nonduplicative information. Yet Magistrate Judge Bulsara found that Defendants failed to offer any evidence to substantiate their position, “such as email exhibits showing that all parties were copied on the relevant emails,” or a plausible explanation, “such as a factual proffer that, given their roles as supervisors, these defendants always emailed with each other about all employees.” “The mere fact that many documents have already been produced is not sufficient to establish that there are no other relevant materials to be found.” Id. (internal quotations marks omitted).

Furthermore, for Defendants to prevail on limiting discovery because of duplication, they must show that the information at issue is “unreasonably cumulative or duplicative.” Id. (internal quotation marks omitted). But the fact that there may have been some overlap and duplication “is insufficient to preclude the discovery sought.” Additionally, as Magistrate Judge Bulsara observed, “even if duplicative, obtaining the information about custodian of a text message or email yields pertinent information.” Id. at *3. “[E]ven if an email was produced from one witness’s custodial inbox, producing the same email from another witness’s inbox establishes that the second witness received the email (and helps counter any suggestion that he or she lacked knowledge of or did not receive the email in question).”

Second, Magistrate Judge found that “Defendants’ papers are devoid of any specific analysis of the burden of the ESI production being sought by Plaintiff.” Accordingly, Magistrate Judge Bulsara held, “the Court cannot conclude that the efforts in reviewing the ESI of the additional custodians would be so burdensome so as to be ‘inaccessible.’ ”
Magistrate Judge Bulsara continued that “[i]t appears — though the parties’ papers are unclear on this point — that Defendants have agreed to obtain a subset of ESI from particular defendants and cobbled together the information.” However, “[t]his kind of splicing — collecting emails from one defendant, text messages from another — with the hope that the amalgam of information is the universe of relevant discovery is an inappropriate collection and production methodology” because “[i]t assumes, [falsely,] that one person’s documents are complete and nothing has been deleted or expunged, that reviewing duplicate information is unduly burdensome or disproportionate, and that custodian information is irrelevant.” The magistrate judge also rejected Defendants’ argument that they were best situated to determine which custodians to search because this approach “is in tension with Rule 26 — which requires production of ESI unless ‘the party resisting discovery [has] shown that the information in question is not reasonably accessible.’ ” Id. at *4. (emphasis in original). Defendants also argued that “in other districts Plaintiff[ ] would not be permitted to discovery from other custodians — i.e., there is an automatic limit.” But Magistrate Judge Bulsara clarified that the relevant issue was “whether the discovery is relevant and proportional, not whether ... Plaintiff’s request exceeds a bright-line cap.”

Magistrate Judge Bulsara rejected Defendants’ proposal to collect text messages from one of the three requested custodians, “who was part of all of the text messages of all three.” Id. *4-5. “Defendants[’] attempt to avoid text message collection from these individuals because they have said there are no other text messages is unpersuasive, particularly when there has been no showing that there is a disproportionate burden from the additional collection and production.” Id. at *5. With respect to GroupMe chats, Magistrate Judge Bulsara rejected Defendants’ position that “custodial interviews reveal there was nothing relevant to this lawsuit discussed on the chat” because it represented “a form of self-collection which is strongly disfavored.” Magistrate Judge Bulsara similarly rejected Defendants’ argument that by deleting his copy of the requested chats, Plaintiff admitted their nonrelevance: “Defendants have a preservation and production obligation irrespective of whether Plaintiff complied with any obligation he had.” Accordingly, Magistrate Judge Bulsara granted Plaintiff’s motion to compel and ordered Defendants to collect and produce the remaining requested categories of documents from all Defendants.

5. In In re Search of Info. Stored at Premises Controlled by Google, 2020 U.S. Dist. LEXIS 152712 (N.D. Ill. Aug. 24, 2020), a case in which “geofence” warrants faced their first round of judicial scrutiny, Magistrate Judge Gabriel Fuentes denied the government’s proposed search warrant application because it failed to satisfy the Fourth Amendment’s probable cause and particularity requirements.

In this case, the government sought a “geofence” search warrant to obtain data from Google in connection with an investigation into a suspected theft of prescription medications. Id. at *1. Generally, geofence search warrants allow law enforcement to search a database to find all active mobile devices within a defined geofence area. While conducting its investigation, the government developed evidence, in part from surveillance footage, suggesting that an unknown individual entered two physical locations to receive and ship stolen medication at specific times. Id. at *1-2. In hopes of identifying the individual, the government submitted an application for a geofence search warrant seeking historical information from Google, which would identify devices that were at those locations around the times the suspected thefts took place. Id. at *1.

Google collects location data from sources including GPS information, cell-site information, Wi-Fi access points, and Bluetooth beacons within range of a given mobile device. Id. at *5. Devices with Android as well as Apple operating systems communicate with Google when a user enables “location services” (for Android devices) or “location sharing” services (for non-Android devices). This information can show that a certain device was located at a particular place at a particular point in time, and, as the government suggested, a device that does not transmit this type of location information to Google “would be a relatively rare case.” Id. at *6-7.

The government’s application sought to set up three geofences. Id. at *2. Two would be at the same location but would cover different timeframes. The third would be at a second location. The timeframe for each proposed geofence would be 45 minutes. For each of the proposed geofences, the government requested that Google be compelled to disclose a list of unique device identifiers for devices known by Google to have traversed the respective geofence. The government hoped to use this information to help identify the unknown suspect — the theory being that at least one of the devices identified by Google to have traversed a geofence would likely belong to the individual seen on surveillance footage.

The government submitted two prior applications, both of which were denied. The first application was denied on July 8, 2020, by Magistrate Judge M. David Weisman. Id. at *2-3. The second application “narrowed the geographical scope of the three proposed geofences, drawing them more tightly around the two physical locations where the [unknown suspect] was seen entering to receive or ship the stolen medication, and attempting to reduce the number of devices (and persons) identified in the search.” Id. at *3. Magistrate Judge Fuentes denied the government’s second application on the grounds that it failed to meet the Fourth Amendment’s probable cause and particularity requirements.

In its third application, the government attempted to narrow the warrant by altering the proposed search protocol to eliminate the third of the three stages set forth in the prior warrant applications. The three stages were “(1) Google’s collection of information it possesses about devices it believes traversed the geofences; (2) Google’s production of an ‘anonymized’ list of the unique device IDs for those devices as well as related information including their location coordinates and time stamps; and (3) Google’s production of the subscriber information identifying the account holders or users of the devices on the anonymized list, with the government exercising its discretion as to the device IDs for which Google would obtain identifying subscriber information and provide it to the government.” The government argued that eliminating the third stage would cure the warrant application of any of the previously identified constitutional deficiencies. In particular, the government contended that the revised application survived constitutional scrutiny because it “d[id] not seek any individual identifying information and cannot be used to identify a device’s user without further information from Google.” Id. (internal quotation marks omitted). The government also amended the description of the information to be seized by limiting the anonymized information to that which “identifies individuals who committed or witnessed the offense,” which it argued would bring the warrant into compliance with the particularity requirement by limiting the government’s discretion “to select device information from among the anonymized lists.” Id. at *5 (internal quotation marks omitted). Additionally, the government added a representation that it would retain the power to obtain by subpoena the identifying subscriber information for any of the device IDs on the anonymized list obtained under the proposed warrant but that the government would do so only after reviewing the anonymized information.

Magistrate Judge Fuentes began his analysis by considering whether the third application proposed a search for purposes of the Fourth Amendment. Id. at *7. As he explained, “[a] government intrusion into a person’s private sphere qualifies as a search, triggering the Fourth Amendment requirement that the intrusion be authorized by a warrant supported by probable cause, when that person seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable.” Id. (internal quotation marks omitted). Although the magistrate judge recognized that recent Supreme Court precedent “raises questions about the degree to which ... the proposed geofences constitute a search,” he ultimately chose not to reach the question in this case. Instead, he concluded that because the government treated the proposed receipt of information as a search, arguing that it satisfied the Fourth Amendment, the government thereby forfeited any argument that the Fourth Amendment did not apply. Id. at *12-13.

Magistrate Judge Fuentes next considered whether the application satisfied the Fourth Amendment’s probable cause and particularity requirements. Id. at *21. On probable cause, Magistrate Judge Fuentes concluded that despite the government’s tweaks, the third application “suffer[ed] from the same probable cause problem as did the earlier two applications.” Id. at *41. Specifically, according to Magistrate Judge Fuentes, “[b]ecause the proposed warrant here s[ought] information on persons based on nothing other than their close proximity to the [unknown suspect] at the time of the three suspect shipments, the Court cannot conclude that there is probable cause to believe that the location and identifying information of any of these other persons contains evidence of the offense.” Id. at *55-56 (emphasis in original).

With respect to particularity, Magistrate Judge Fuentes emphasized that under established Supreme Court precedent, “a warrant to search a place cannot normally be construed to authorize a search of each individual in that place,” and, further, “[a] warrant that meets the particularity requirement leaves the executing officer no discretion as to what to seize.” Id. at *56, 58. The government argued that its third application satisfied the particularity requirement because the proposed geofences were “narrowly tailored in a manner justified by the investigation.” Id. at *57. Specifically, the government argued that the proposed geofences were “constrained both geographically and temporally to the receipt and shipment of stolen prescription medication that the government is investigating.” Id. at *56. But Magistrate Judge Fuentes disagreed, concluding that “the warrant here gives the officer unbridled discretion as to what device IDs would be used as the basis for the mere formality of a subpoena to yield the identifying subscriber information, and thus, those persons’ location histories.” In his view, “[t]his amount of discretion is too great to comply with the particularity requirement.” Id. at *63.

In closing, Magistrate Judge Fuentes clarified that by denying the government’s application, he did not “intend to suggest that geofence warrants are categorically unconstitutional.” Id. at *64. Rather, “[e]ach specific proposed application must comply with longstanding constitutional protections of individual privacy rights, which should not be diminished by increased technical capability for intrusion, or by how effective those capabilities might be at solving crimes.”