Feds Were Too Curt With Target of Child-Porn Case

     (CN) – With the government refusing to extract thousands of family photos and personal emails from a computer seized in a child-pornography case, the 9th Circuit ordered it to provide proof of the allegedly high cost and difficulty such work poses.
     Investigators seized Justin Gladding’s three computers and other hard drives in a federal child-pornography investigation that eventually led to him pleading guilty in Fresno, Calif.
     While the devices were subject to forfeiture, Gladding asked prosecutors to return his personal, “noncontraband” files, which included pictures of his family and emails. The government initially agreed to do so, but later balked at the cost and difficulty of segregating and recovering the files.
     After three separate hearings on Gladding’s motion to have the files returned, U.S. District Judge Anthony Ishii let the government off the hook, agreeing that it was too expensive and difficult to separate and retrieve the requested files.
     While Gladding’s appeal to the 9th Circuit was pending, his own expert pulled many, though not all, of the requested files off the devices.
     A three-judge appellate panel remanded the case back to Fresno on Wednesday, finding that the lower court had improperly placed the burden of proof on Gladding rather than the government.
     “The District Court denied Gladding’s motion because it was ‘satisfied’ by the government’s ‘representations’ that it is ‘almost impossible to separate [the noncontraband files] out,'” Judge Carlos Bea wrote for the unanimous appeals panel (brackets in original).
     “But representations are not evidence, unless adopted by the opponent,” Bea added. “The government failed to submit any evidence of the difficulty and cost of segregating Gladding’s data, which it claimed was a ‘legitimate reason’ for retention of the noncontraband files.”
     On remand, the trial “court can require Gladding to pay the costs of segregation by having his expert review the electronic storage devices and copy the noncontraband files to the extent otherwise permitted by law,” the ruling continues.
     “Indeed, Gladding already had an expert review the storage devices while this appeal was pending,” Bea added. “The district court may decide to order the government to provide a printed directory of the electronic storage devices. A directory could assist Gladding in better identifying which files he wants returned or which folders potentially contain noncontraband material. Such a remedy may have the effect of substantially reducing the government’s costs in identifying noncontraband files to return to Gladding.”

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