[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]
Sometimes government personnel use personal systems to conduct government business. That is not a good idea:
The Court ORDERS a counsel-supervised search of personal email and personal cell phone data, including messaging applications, for Dumont, Catalano, Barnes, Pepoli, Fonseca, and Hillis. The search shall use the proposed search terms—“Derrick Washington,” “Washington,” “DW,” “W89316,” “BLACC,” and “Black, Latino, Asian Cultural Coalition”—and shall be limited to the period from November 1, 2019 through August 1, 2020.
The search shall be conducted by, or directly overseen by, defense counsel. It shall not be left to the individual Defendants to determine unilaterally whether potentially responsive communications exist. The Court does not require wholesale forensic imaging of any personal device. ….
As to the remaining individual Defendants, each shall file on the docket a sworn affidavit by September 16, 2026 attesting that, after conducting a diligent search consistent with the parameters above, Defendants do not have any communications responsive to the above search terms.
Washington v. Mass. Dept. of Corrections, et al.,2026 WL 2454275 (D. Mass. Aug. 21, 2026)(emphasis added).
For a discussion of a parallel issue regarding use of personal devices in the private sector, please see Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024).
For a discussion of the requirement of attorney supervision of a client search, please see:
- “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024);
- Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021);
- Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021);
- Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011).
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