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United States v. Rosenchein

United States District Court, D. New Mexico

January 14, 2020



         This matter comes before the Court on the Proposed Findings and Recommended Disposition ("PFRD") of the Magistrate Judge [Doc. 183], filed October 2, 2019, which recommends that the Court grant Non-Party Microsoft Corporation's Motion to Modify Rule 17(c) Subpoena [Doc. 125]. The Court referred the Motion to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed. R. Crim. P. 59(a). [See Doc. 139]. Defendant Rosenschein objected to the Magistrate Judge's recommendation on October 16, 2019, [Doc. 185], Microsoft responded to Defendant's objections on November 8, 2019, [Doc. 190], and Defendant filed a Reply to Microsoft's Response on November 27, 2019. [Doc. 196]. Having reviewed the Magistrate Judge's PFRD and considered the parties' positions, the Court finds that the Magistrate Judge's findings are not clearly erroneous and that his conclusions are not contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Crim. P. 59(a). Therefore, the Court overrules the objections and adopts the Magistrate Judge's PFRD.


         Defendant filed his objections "under 28 U.S.C. § 636(b)(1)(C) and Federal Rule of Criminal Procedure 59(a) which provide de novo review of a Magistrate's finding and recommendations." [Doc. 185, p. 1; see also Doc. 196, p. 1 ("Dr. Rosenschein seeks de novo review of the issues presented by Microsoft in its original motion under 28 U.S.C. § 636(b)(1)(C) and Federal Rule of Criminal Procedure 59(a).")]. Microsoft did not challenge Defendant's statement of the standard of review, even though it noted that "[a]fter the motion was fully briefed this Court referred Microsoft's motion to the Magistrate Judge for decision pursuant to 28 U.S.C. § 636(b)(1)(/4) and Fed. R. Crim. P. 59(a)." [Doc. 190, p. 3 (emphasis added)]. However, de novo review is the standard for dispositive recommendations, see 28 U.S.C. § 636(b)(1)(B) and Fed. R. Crim. P. 59(b), and it does not apply here.

         Microsoft's motion to modify a subpoena is a pretrial, non-dispositive matter. Authority for a district judge to refer such a matter to a magistrate judge in a criminal case comes from 28 U.S.C. § 636(b)(1)(A) and Fed. R. Crim. P. 59(a). If there are objections to the magistrate judge's recommendations, the district judge reviews them under a standard of "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Crim. P. 59(a) ("[t]he district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous.").

         As the Tenth Circuit recently stated, "Rule 59 is 'derived in part from Federal Rule of Civil Procedure 72.'" United States v. Doby, 1199');">928 F.3d 1199, 1206 (10th Cir. 2019) (quoting Fed. R. Crim. P. 59, advisory committee's note to 2005 amendment). Thus, the Court takes guidance from the standards applicable under Fed.R.Civ.P. 72. Under Fed.R.Civ.P. 72, "[t]he clearly erroneous standard ... requires the reviewing court affirm unless it 'on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Ocelot Oil Corp. v. Sparrow Industries, 1458');">847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).[1" name="FN1" id="FN1">1] "Under the 'contrary to law' standard, the district judge conducts a plenary review of the magistratejudge's legal determinations, setting aside the magistrate judge's order only if it applied an incorrect legal standard." Coll v. Stryker Corp., CV 14-1089 KG/SMV, 2017 WL 3190658, at *7 (D.N.M. 2017) (cited authority omitted).

         II. BACKGROUND[2]

         Defendant is charged with the distribution and possession of child pornography. [See Doc. 1]. Law enforcement began investigating Defendant after he sent two images through electronic service provider Chatstep, which Chatstep identified as child pornography through the use of Microsoft's PhotoDNA service. PhotoDNA is a cloud-based service developed by Microsoft in conjunction with the National Center for Missing and Exploited Children ("NCMEC") to help prevent the sharing of child pornography. It works by analyzing digital images to create a unique "hash value" of a file that is then matched against databases of hash values of known child pornography. After receiving the images from Chatstep, NCMEC did not view them, but forwarded them onto the New Mexico Attorney General's Office Internet Crimes Against Children Task Force.

         Defendant issued a subpoena under Fed. R. Crim. P. 17(c) on October 11, 2018, requesting eighteen (18) separate categories of documents. [Doc. 125-1, p. 6]. Microsoft objected to the subpoena as overbroad, and, after meeting and conferring, communications between counsel for Defendant and Microsoft broke down, resulting in the instant motion practice. The Magistrate Judge summarized the parties' arguments and the Court will not revisit them here. Suffice to say, in its Motion Microsoft asked the Court to find the subpoena to be unreasonable and oppressive as drafted, and to limit Microsoft's duty to respond to specific categories of documents. [See Doc. 125, pp. 17-18]. Pertinent here, Microsoft asked the Court to limit its duty to produce "[information regarding the specific CyberTipline Reports in this case, dated July 31, 2016, and August 8, 2016[.]"[Id.].

         After briefing on Microsoft's Motion was complete, the Court referred the Motion to the Magistrate Judge for decision. The Magistrate Judge issued his PFRD on October 2, 2019, recommending that Microsoft's Motion be granted and that Defendant's request for a telephonic hearing on the Motion be denied. [Doc. 183, p. 13]. The Magistrate Judge found that as drafted Defendant's subpoena read like civil discovery requests and failed to meet the specificity requirement announced in United States v. Nixon, 418 U.S. 683, 700 (1974). [Id., pp. 10-12]. Alternatively, he found that the subpoena should be modified because Microsoft produced evidence that responding to the subpoena as drafted would be unreasonable or oppressive. [Id., p. 12]. The Magistrate Judge recommended that this Court modify the subpoena and order Microsoft to produce only certain specific categories of documents. [Id.].

         Defendant begins his objections by asserting that the Magistrate Judge applied the wrong legal standard because the subpoena is directed at Microsoft, a third party, rather than the government. [See Doc. 185, pp. 3-8]. Following this argument, Defendant objects to the Magistrate Judge's findings regarding the specificity of a number of his requests. [Id., p. 8]. Defendant fails to acknowledge that, pursuant to the parties' agreement, the Magistrate Judge ordered Microsoft to produce information relevant to the two Cybertips at issue in this case as well as other limited information sought by the subpoena. Defendant argues that his other requests, as narrowed by the parties' negotiations, were not oppressive because of the extent of Microsoft's resources. [Id., p. 10]. Defendant does not challenge the Magistrate Judge's finding that the subpoena as drafted should be modified as oppressive, nor Microsoft's estimate of the cost of compliance other than to claim that it "is not sufficiently particularized in Microsoft's declarations to be reliable." [Id., p. 12]. Finally, Defendant asks for a hearing "to aid the Court in resolving the legal issues set forth in the briefs on the issues presented." [Id., p. 13].

         Microsoft's Response to Defendant's objections defends the legal standard employed by the Magistrate Judge, arguing that Defendant's proposed lesser standard "has been roundly rejected by courts across the country, including in this Circuit." [Doc. 190, p. 4');">p. 4]. Microsoft further argues that Defendant's objections to the Magistrate Judge's specificity analysis should be overruled, both because the Magistrate Judge correctly found the subpoena's requests to be insufficiently specific, and because "Defendant fails to acknowledge that Microsoft already agreed to conduct a reasonable search and produce non-privilege documents responsive to many of these requests." [Id., p. 6 (emphasis in original)]. Finally, Microsoft argues in favor of the Magistrate Judge's finding that compliance with the subpoena as drafted would be oppressive. [Id., pp. 7-9].

         Defendant's Reply takes issue with the Magistrate Judge's observation that service providers would be forced to abandon preventative efforts if subpoenas like the one at issue were enforced in every case and accuses him of failing to properly apply the law. [See Doc. 196, p. 5 (stating that the Magistrate Judge's "rationale in denying Dr. Rosenschein's subpoena requests underscores the point that he considered this case to be less about specificity or evidentiary requirements and more about the magistrate judge's unfounded and improper concern that 'service providers would be forced to abandon preventative efforts.'"). Defendant also argues that "Microsoft's objections have more to do with stacking the deck against [him] than ensuring the fair administration of justice is achieved in this case." [Id., p. 8]. Finally, Defendant argues that the Court should "treat Microsoft's litigation positions and declarations with a healthy degree of skepticism" because it "protects its customers from criminal prosecution by not using PhotoDNA on its internal systems ... while at the same time employing PhotoDNA to prosecute individuals who use non-Microsoft services like Chatstep." [Id., p. 10]. Finally, Defendant requests a hearing before this Court to explain his position because "all of the evidence requested by Dr. Rosenschein is relevant and material for Dr. Rosenschein to prove, as an evidentiary matter, that NCMEC acquiesced in Microsoft's employing the PhotoDNA search tool, and that Microsoft intended to assist law enforcement agencies and criminal prosecutions by providing this service for free to NCMEC and other qualified entities." [Id., p. 11]. For the reasons explained below, the Court overrules Defendant's objections.

         III. ANALYSIS

         A) Defendant's objection that the PFRD applied the wrong ...

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