## Facts

- Federal authorities investigated a steroid-distribution scheme tied to professional baseball.
- Major League Baseball and the players’ union implemented suspicionless drug testing with assurances that results would remain confidential and anonymous except for limited aggregate purposes.
- Comprehensive Drug Testing, Inc. (CDT) administered sample collection and maintained records linking players to test results; related entities held testing data.
- The government obtained subpoenas and search warrants seeking drug-testing records tied to specific suspected players.
- In executing the warrants and related process, agents seized and reviewed broad swaths of electronically stored records, including information about many players not identified in the warrants.
- Multiple district courts issued orders requiring return/segregation of materials and restricting government use and disclosure of non-target players’ information.

## Issues

1. Whether the execution of warrants and subpoenas that resulted in seizure and review of electronically stored records beyond the warrant’s scope was unreasonable under the Fourth Amendment and improper under Rule 41.
2. Whether, in large-scale electronic searches, the government may retain and use evidence concerning non-target persons or crimes discovered while searching intermingled data, including through the plain-view doctrine.
3. Whether the district courts properly used Rule 41(g) and supervisory authority to order return, segregation, and use restrictions, and whether an appellate court may announce prospective safeguards for future electronic searches.

## Decision

- The en banc court largely affirmed district court orders protecting CDT and the players’ association, finding the government’s handling of the electronic records overbroad and inconsistent with the warrants’ limits.
- The court approved remedial measures requiring return or segregation of nonresponsive data and limiting government use of information about players outside the warrants.
- Exercising supervisory authority, the court set out stringent recommended procedures for electronic searches to reduce over-seizure and improper review of nonresponsive information, including limiting investigative agents’ exposure to nonresponsive data and strongly discouraging reliance on plain view for nonresponsive digital material.

## Legal Principles

- Electronic searches commonly entail seizure of more data than ultimately authorized by probable cause, but that practical reality requires heightened judicial control to prevent de facto general warrants.
- When government execution of an electronic-data warrant exceeds authorized scope, courts may order return, segregation, and conditions restricting access and use under Rule 41(g), including measures to prevent exploitation of nonresponsive materials.
- Warrants for electronically stored information should, when feasible, incorporate minimization steps such as segregation/redaction protocols, limits on retention and use of nonresponsive data, and judicially supervised procedures for off-site review.
- Courts may, under supervisory authority, require or strongly encourage search protocols that separate responsiveness review from the investigative team (e.g., neutral reviewers) and limit use of nonresponsive data unless independently authorized.

## Conclusion

The en banc Ninth Circuit treated broad seizure and review of intermingled electronic records as a serious Fourth Amendment problem, upheld district court orders requiring segregation/return and limiting use of non-target data, and articulated supervisory guidance favoring ex ante search protocols that minimize access to and retention of nonresponsive digital information.


United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc)