In United States v. Kimoto, 588 F.3d 464 (7^th Cir. Dec. 4, 2009), the Court of Appeals for the Seventh Circuit affirmed the defendant's conviction and sentence, while remanding the case to the district court for further proceedings.  The appellate court specifically rejected defendant's arguments that the government destroyed emails and failed to timely provide forensically sound electronically stored information.

The case related to the government's prosecution and conviction of defendant for mail and wire fraud in connection with an alleged scheme to sell pre-paid credit cards.  In discovery, the government produced copies of several hard drives, more than 3 million pages of paper documents and hundreds of thousands of digital recordings. Defendant objected that the produced hard drives were not forensic copies and accordingly filed a motion to dismiss the indictment.  In response the government sent all of its original digital evidence, not copies, to the defendant for review.

In his motion to compel, defendant argued that, despite an exhaustive search, e-mails purportedly provided by the government could not be found and had therefore been destroyed by the government. Defendant characterized the e-mails as exculpatory because they would tend to implicate others and exonerate the defendant.  The court dismissed defendant's assertions as "baseless and gratuitous assumptions" and affirmed the district court's ruling that the government's disclosure of electronic discovery in this case did not violate the principles of Brady v. Maryland, Arizona v. Youngblood, or the Jencks Act.