The case of the day is Knaggs v. Yahoo! Inc. (N.D. Cal. 2016).
Do you remember McArthur Wheeler, the bank robber who robbed a bank in broad daylight with no disguise? He was caught immediately after the police broadcast the security footage showing him holding up the bank. When they arrived to arrest him, he was incredulous that they had caught him. “But I was wearing the juice!” he said, as they took him off to jail.
Wheeler told police he rubbed lemon juice on his face to make it invisible to security cameras. Detectives concluded he was not delusional, not on drugs — just incredibly mistaken.
Wheeler knew that lemon juice is used as an invisible ink. Logically, then, lemon juice would make his face invisible to cameras. He tested this out before the heists, putting juice on his face and snapping a selfie with a Polaroid camera. There was no face in the photo! (Police never figured that out. Most likely Wheeler was no more competent as a photographer than he was as a bank robber.) Wheeler reported one problem with his scheme. The lemon juice stung his eyes so badly that he could barely see.
Russell Knaggs was serving a twenty-year prison sentence in England for conspiracy to import illegal drugs. At his trial, the government had offered evidence that he and his co-conspirator had communicated about their scheme using a Yahoo! email account. But Knaggs and his buddy had done their research. They knew that the government could read emails that you sent to someone else. So they did not send emails to one another. Instead, they both logged into a single account and wrote messages to each other that they saved as drafts rather than sending. I suppose they thought that their messages couldn’t be intercepted if they didn’t send them. What they didn’t realize was that even if there was no “data in motion” for the government to intercept on the wire, the government could obtain the “data at rest” direct from Yahoo! Which is what happened. It turns out that when you delete an email from your drafts folder on Yahoo!, it isn’t really deleted. It’s invisible to you, but it remains on the server for some time while all the steps necessary to complete the deletion take place. And during that time, if Yahoo! takes a snapshot of your account, the erased draft will be included in the snapshot.
The English court indicated receptivity to evidence regarding the details of Yahoo’s technical methods of taking snapshots, in order to evaluate Knaggs’s argument that his conviction should be set aside because the evidence was obtained unlawfully, perhaps because Yahoo, at the government’s behest, had the email account under surveillance. Yahoo’s written explanations of how the deleted emails were saved had shifted somewhat over time, and Knaggs’s expert had opined that its explanations were not believable. In these circumstances, the court ordered Yahoo! to provide a Rule 30(b)(6) witness to testify. Despite the breadth of Knaggs’s requests for information and Yahoo’s concern about having to produce confidential business information, the court allowed the application, primarily because Yahoo’s explanations had not been consistent to date. On the other hand, the court did not allow Knaggs’s requests for documents, which amounted to a “wish list” or a “fishing expedition” not narrowly tailored to the needs of the case.