Civil Litigation
Apr. 21, 2012
eDiscovery: Fifth Amendment privilege vs. disclosures
The act of production becomes testimonial when an individual is compelled "to use 'the contents of his own mind' to explicitly or implicitly communicate some statement of fact."
A. Marco Turk
Emeritus Professor
CSU Dominguez Hills
Email: amarcoturk.commentary@gmail.com
A. Marco Turk is a contributing writer, professor emeritus and former director of the Negotiation, Conflict Resolution and Peacebuilding program at CSU Dominguez Hills, and currently adjunct professor of law, Straus Institute for Dispute Resolution, Pepperdine University Caruso School of Law.
Basic facts. This case resulted from the lawful seizure of seven pieces of digital mediain the course of a child pornography investigation. John Doe had been served with a subpoena duces tecum requiring him to appear before a federal grand jury and produce unencrypted contents that allegedly were located on the hard drives of his laptop computers and five external hard drives. When he appeared before the grand jury, Doe informed the federal prosecutor that he would...
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