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Using Extraterritorial Cyber Subpoenas To Obtain Evidence

By Peter A. Crusco

Although the reach of the federal government is impressive, all 50 states as well as Puerto Rico, the Virgin Islands, and the District of Columbia have had for some time a powerful weapon in the form of the Uniform Act to Secure the Attendance of Witnesses from Without the State (Uniform Act) (available as adopted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) at http://bit.ly/1k6pLs3). Originally enacted in New York in 1936, it is used today to facilitate the issuance of extraterritorial or “cyber subpoenas,” with nationwide reach. For instance, these cyber subpoenas have been used to obtain a variety of records, from a request by a Georgia court for records of sealed matters in New York, to records of automobile manufacturers' confidential vehicle identification numbers used to trace stolen car parts, to casino card dealer observations, cash play, and computerized comps recorded by New Jersey casino establishments in a tax evasion case. See, generally, 11 U.L.A. ”1-8 (2014).

Cyber subpoenas have been used to obtain records maintained out-of-state by out-of-state witnesses. Both legitimate and illegitimate businesses require accurate and complete records of financial transactions to, among other reasons: balance the books; pay employees and suppliers; determine, pay or evade taxes; and insure the stability of an ongoing business. In a given criminal case, those records may prove guilt or establish a viable defense. For instance, the organized crime empire of Al Capone began to crumble with law enforcement obtaining and analyzing his business records. So it is foreseeable that when a business-related crime is involved, litigators for both the prosecution and defense seek to examine and inspect all the pertinent records. In the digital age, those records may be as mobile as the enterprise that created them. Obtaining the records of an enterprise may be the initial focus of significant intense litigation, and the methodology for obtaining those records is the subject of this article.

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