In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 » The Florida E-Discovery Case Law Database » Levin College of Law » University of Florida

In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011

In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011

Case Date: 02/23/2012
Citation: In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Gerald Bard Tjoflat
Rule(s): 5th Amendment
Issues:

Defendant invoked his Fifth Amendment privilege and refused to decrypt hard drives seized by the government. The issue was whether the decryption of a hard drive is testimonial in nature.

Resolution:

The Court held that decrypting and producing information from the hard drives would constitute testimonial evidence entitled to Fifth Amendment protections.  The decryption and production process was a product of Defendant’s mind, and was not merely a physical act. Further, the government could not show that the “foregone conclusion” doctrine applied, as the government did not know exactly what was on the encrypted drives. Because the decryption triggered Fifth Amendment protections, Defendant’s use immunity was not enough to compel him to testify, and he should have been entitled to derivative use immunity as well.

Relevant Documents:

Original Document

E-Discovery Issues: Admissibility, Contempt of Court, Motion to Compel
E-discovery Tags: Form of Production, Possession or Control, Preservation and Collection, Sources of ESI
E-discovery subjects: Computer, Hard drive

Published: December 28th, 2017

Category: Uncategorized


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