For more than a century, the debate has raged over whether Mrs. O’Leary and her famous cow truly started The Great Chicago Fire of 1871. Were the tragic events of that conflagration to happen today, someone would ask Mrs. O’Leary to produce the “RFID” chip in her bovine. (You know they would). They would contend that this key evidence could show the whereabouts and movement of the cow at the time the fire began. When she could not produce it, they would claim not only that she started the fire that destroyed a swath of Chicago, but that she also destroyed the evidence of her guilt. They would cry “spoliation.”
The image of a law firm stuffed with banker boxes floor-to-ceiling is shifting to the view of a computer server filled with gigabytes of information. This is increasingly a digital world and the documents, photographs, charts, memos, and emails that are the “stuff” cases are built upon now often come in digital form. As a result, great emphasis is placed upon “electronic discovery.”
In Riley v. California, 134 S. Ct. 2473, 2477, 189 L. Ed. 2d 430 (2014), the Supreme Court considered whether police officers could search the contents of a smart phone incident to an arrest. In Riley, an alleged gang member was arrested for possession of a concealed firearm. At the precinct, a police officer went through the arrestee’s smart phone looking for evidence of other crimes and found a picture of the arrestee next to a car connected to a drive-by-shooting.