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: | |
| 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 |