Anyone who watched television during the early to middle part of the last decade would have seen an ad for Enzyte. The product purported to make male genitalia larger and used a figure referred to as “Smilin’ Bob” as its representative. The company also said the product was scientifically proven to work and would produce a size increase of up to twenty-five percent.

Much to the dismay of Enzyte’s Porsche-revving customers, that was all a fiction.

However, it was a very successful fiction, producing hundreds of millions of dollars for the product’s creator, Steven Warshak, his mother and Enzyte employee Harriet Warshak, and his representative company. Much of the success of the product was not due to repeat business, but a system called “auto-ship” where anyone ordering the product online was automatically enrolled in (and generally uninformed of) a program which would continue shipping (and charging for) the product. Additionally, Warshak hid or omitted any disclaimers about this practice on the corporate website and further required anyone dissatisfied with the product to sign an affidavit that the product had not worked. The rationale behind this was that people would be too embarrassed to have such a document notarized.

Naturally, such practices caused consumers to become aroused with anger, and file complaints with the Better Business Bureau. This drew the attention of the U.S. Department of Justice, which began an investigation and filed multiple counts of fraud against Warshak. At trial, Warshak was sentenced to 25 years in prison, his mother sentenced to 2 years, and each were fined substantial amounts. While fraud was the primary issue in the appellate decision, the court also discussed at length the issue of whether the government’s compelling of Warshak’s ISP, NuVox, to preserve prospectively e-mails without first receiving a warrant was contrary to the Fourth Amendment prohibition on unreasonable searches and seizures. The court stated that the Fourth Amendment search standard breaks down into two questions: 1) “has the target of the investigation manifested a subjective expectation of privacy in the object of the challenged search”; and 2) “is society willing to recognize that expectation as reasonable?” On the first question, the court found that Warshak had subjectively expected the emails to be private because they had damning information about the auto-ship program as well as falsehoods about the product’s successfulness. On the second question, the court found that the increasing amount of e-mails containing private information society-wide means that this is a reasonable expectation shared by the public and the Fourth Amendment thus has to modernize to find these communications protected. Thus, there was error in allowing the e-mails to be seized from NuVox without a warrant.

The court found this error was harmless, though, due to the Stored Communications Act (18 U.S.C. §§2701 et seq). Existing since 1986 and not having been subject to any successful Fourth Amendment challenges, the Stored Communications Act “allows the government to obtain certain electronic communications without procuring a warrant for communications in electronic storage for 180 days or less. To retrieve communications older than 180 days, the government must:

1. Obtain a warrant;
2. Use an administrative subpoena; or
3. Obtain a court order under §2703(d)

The government obtained a subpoena in January 2005. Additionally, there is a good-faith reliance provision in the Act that allows a law enforcement officer to rely upon its provisions unless they are so manifestly unconstitutional as to seem impermissible. The court found that the complexity of the Act and its continued validity since inception did not preclude such reliance.

Warshak also raised issue of the fact that the government had not informed him (account holder) before their efforts to compel release of the emails. The court rejected this because there is a 90 day delay built into the Act for such notification, and this may be delayed in additional increments. While the government did not give notice, the court found it to be harmless error because the expiration of the period came after the e-mails had been obtained and thus did not result in constitutional violations.

Warshak also argued that the government’s prospective compelling of e-mails from the ISP is counter to the statute, however the court said that this is not implied in the Act’s language. The court also found this was an irrelevant issue since it did not impact good faith reliance in obtaining copies of Warshak’s e-mails.

Finally, Warshak claimed that the government violated the Act by not providing any specialized factual basis when seeking an order for disclosure. The court also disagreed with this as well, noting that the government had stated it was “investigating a complex, large-scale mail and wire fraud operation” and also named NuVox as one of the electronic service communication providers “to certain individuals [under] investigation.”

With respect to eDiscovery issues, Warshak alleged that the immense amount of materials turned over to them by the government (approximately 17 million pages of electronic information and 506,000 pages of hard copy documents) were presented in an disorganized and unsearchable format, that the production of “haystacks” of information dwarfed any “needles” of exculpatory information, and that they had been erroneously denied a 90 day continuance to enable defendants to fully examine the information. The court roundly rejected all three claims, noting that defendants had not provided authority that a “district court must order the government to produce electronic discovery in a particular fashion,” and that Federal Rule of Criminal Procedure 16 is “entirely silent on the issue of the form that discovery must take…”

The court also noted that “the overwhelming majority of the discovery at issue” came directly from defendants’ computers and that expert testimony suggested the information was easily searchable. There was also no proof that the government “larded its production with entirely irrelevant documents,” that it made access to the documents “unduly onerous,” or that it deliberately concealed any exculpatory evidence in the information it turned over.

Finally, on the matter of continuance, the court noted there was no abuse of discretion because there was a year between the indictment and the beginning of the trial and that most of the documents in question were in defendants’ possession as early as April 2005. The court also mentioned that all discovery documents were in defendants’ hands more than six months before the beginning of trial.

In the end, Warshak and Co.’s argument could have used some “enhancement” of its own, as the court took a stiff stance defending eDiscovery production tothe government.