Electronic Discovery Law
State has Obligation to Provide Defendants "Meaningful Access" to Copies of Seized Hard Drives
State v. Dingman, 202 P.3d 388 (Wash. App. 2009)
On appeal from his conviction for first degree theft and money laundering, Dingman argued that the trial court erred when it denied his repeated discovery requests for meaningful access to the hard drives seized from his house. The appellate court agreed, and the case was reversed and remanded for a new trial.
On March 19, 2003, officers searched Dingman’s house and seized nine computers. A detective then created mirror image copies of those computers using a program called EnCase. Eventually, Dingman was charged with numerous counts of first degree theft and money laundering.
On January 1, 2004 the State provided Dingman with discovery, including a report containing information about the mirror images copies of his computers taken with EnCase. In August of 2005, Dingman moved for additional discovery, requesting direct access to the computer hard drives or mirror image copies “created in a program used by the defendant’s computer expert.”
At hearing, Dingman asserted that neither his computer expert nor defense counsel had access to the EnCase program used to create the mirror images. Additionally, his computer expert indicated that he did not use the program because it was created for use by law enforcement and expressed concern that its search function could contain an inherent bias. Summarizing his request to the court, Dingman’s counsel indicated that “he merely wanted the discovery in a format that the defense and its expert could use.”
In response, the State expressed “reservations” that the program used by Dingman’s expert, Ghost, could produce inaccurate copies of the hard drives and that the drives could be damaged because they had not been used in a long time. The State also indicated its belief that it did “not need to conform its investigation or its investigatory tools to the whims and desires of the defense.”
Finding that the Ghost program would not provide an accurate image and noting that the EnCase search function was not the only search program available, the trial court granted the motion in part and ordered the State to provide EnCase copies of the hard drives to Dingman. Approximately one month later, the court granted Dingman’s request for a continuance based on his counsel’s continuing attempt to obtain a less expensive version of the searching software.
In December 2005, Dingman requested a second continuance. In support of that motion, The Department of Assigned Counsel’s Information Technology Specialist submitted an affidavit explaining that she had received 4,868 files from the State but that “the EnCase program is not usable without program specific training” and that the training cost $1,500. She also stated that no member of her office was trained to use EnCase and that although she had reviewed some files using a free trial version of another program, that program did “not substitute as an operating system that will actually run any of the associated programs required to open a specific file.” The trial court denied the motion stating, “What I am hearing is a lot of requests to do things that should have been done all along the way.”
At trial, Dingman was convicted of 16 counts of first degree theft and 16 counts of money laundering.
On appeal, the court relied heavily on a previously decided case, State v. Boyd, 160 Wash.2d 424, 158 P.3d 54 (2007). “In Boyd, the Court of Appeals examined the State’s obligation to provide a defendant access to mirror image hard drives” following the State’s decision to grant such access, “but only in a State facility…and only through the State’s operating system and software.” The court held that “the State had an obligation to provide meaningful access to the hard drive copies.” The Boyd court further resolved that the issue was governed by CrR 4.7(a)(1)(v) which, by its plain language, “obligates the State to disclose all…tangible objects it has in its possession, ‘which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belonged to the defendant.’” The Boyd court went on to state that under the rule, “the burden is on the State to establish, not merely claim or allege, the need for appropriate restrictions.”
Having identified the controlling law, the court turned to the facts of the case before it. Addressing first the State’s failure to produce the confiscated hard drives for Dingman, the court concluded that the State’s speculation about possible damage to the drives as a result of sitting unused failed the test set out in Boyd “that the State show – rather than claim or allege – that it is placing appropriate restrictions on discovery.” The court went on to note that “[a]lthough Boyd does not cover the exact circumstances of Dingman’s case, it counsels against unduly restricting access to electronic evidence in criminal matters.”
Accordingly, the court concluded that, “In light of the plain language of CrR 4.7(a)(1)(v), which gives the defense access to objects the defendant owned, and the State’s failure to meet its burden of proving restrictions were necessary, the trial court erred in denying Dingman’s motion to access his hard drives.”
The court then turned to the State’s failure to provide a readily readable mirror image copy of the drives and the State’s argument that “it is not required to conform its investigation to Dingman’s whims.” Again relying on Boyd, the court pointed to that court’s determination to strike down the order requiring the defense to access the mirror image drives “‘only through the State’s operating system and software.’” The court also noted a federal court’s analysis that “[a]n amply opportunity [to forensically examine seized computer items] will permit a defense expert to utilize his or her hardware or software.”
Addressing the State’s objections to access because of potential alteration to the drives by the defense expert’s use of Ghost software, the court reasoned that any alteration could be detected because of the State’s possession of the original EnCase copies. The court also noted the State’s own license to use Ghost. Finally, the court determined that the State’s remaining objections were “insufficient to overcome the goal of open discovery set out in Boyd’s analysis of CrR 4.7.”
Accordingly, the court found that “[t]he remedy is to reverse and remand for a new trial.”
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