TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 13, 2011
RE: Rule 41, N.D.R.Crim.P., Search and Seizure
Rule 41 came before the Committee at the September 2010 meeting. The Committee considered whether amendment of the rule consistent with the 2009 amendments to Fed.R.Crim.P. 41 would be appropriate. The amendments to the federal rule deal with the seizure of electronically stored information. They allow the seizure of electronic storage media or the seizure and copying of electronically stored information and the subsequent review of the storage media or electronically stored information consistent with the warrant.
The Committee instructed staff to prepare amendments to Rule 41 based on the federal amendments. These amendments are attached as is a copy of Fed.R.Crim.P. 41 and explanatory material on the 2009 amendments.
While "electronic storage media" is not defined in the rule, the Notes of the Advisory Committee on the 2009 amendments (which are at the end of the federal rule copy) indicate that the term refers to computers and related storage media containing large amounts of digitized information. The Committee concluded that the rule was needed because "it is often impractical for law enforcement to review all of the information during execution of the warrant at the search location." Therefore, the "rule acknowledges the need for a two-step process: officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant."