United States v. Olson, No. 1:25-cr-69-RCL, D.D.C. (July 22, 2026), full opinion (PDF)
The government imaged 42 digital devices in June 2021 and then left almost all of them alone. Nearly five years later, with about 23 terabytes still unreviewed, it announced that it would transfer the data to a private party and remove it from its systems. The defendants asked Judge Lamberth to order the government to preserve and search that data instead. He denied the motion. The reason should concern any defendant whose case depends on ESI sitting in government hands.
The government had held the data too long. That delay made its continued possession of the non-responsive portion an unlawful seizure, which left the court without power to order the government to keep it.
What Happened
On June 30, 2021, the government executed search warrants at Olson's residence in Albuquerque, New Mexico, and at Theia's headquarters in Washington, D.C. Agents forensically imaged 16 devices from the residence and 26 from Theia's headquarters, producing about 23 terabytes of forensic images. The warrants enumerated the evidence the government had probable cause to seize and established a filter team to separate it from everything else on the devices.
The separation never happened. Theia went into receivership several months later, and the government began issuing grand jury subpoenas to Theia's receiver, who produced tens of thousands of documents. The government represented that this production largely "obviated the need for evidence" that might exist on the forensic images. It reviewed only a few of the 42 images. The remainder stayed, in the government's own description, "unprocessed, unfiltered, and unreviewed".
Defendants were charged by indictment on March 13, 2025. At a status conference on January 8, 2026, the government said it planned a large filter-side production covering the images of approximately 16 devices from the Theia headquarters search. On April 15, 2026, it filed a Notice of Return of Property proposing to transfer the data to Olson or to Theia's former creditor Brevet and then remove it from government systems. Defendant Buscher moved to preserve the data, and Gallagher and Olson joined or supplemented that motion. A significant number of the receiver's documents had reached the defense corrupted and inaccessible, which is part of what drove the dispute.
The Court's Analysis
Rule 41(e)(2)(B) allows agents to copy an entire storage medium on site and review it later to determine what falls within the warrant. That second step is known as scoping. Imaging a device almost always sweeps in material the government has no probable cause to take, so its authority to hold that material is temporary and exists to allow the sorting.
Delay defeats that authority. Following Judge Randolph Moss's decision in United States v. Maresca, issued in the same district on April 6, 2026, the court held that excessive delay in scoping gives rise to an unlawful seizure of materials over which the government lacks probable cause. Reasonableness turns on the property interests at stake, the length of the delay, bad faith, prejudice, and, most importantly, the government's justification for the delay. Here nearly five years passed before the government addressed the issue, and no one could reasonably assert that 23 terabytes held only responsive material.
Once the seizure became unlawful, the government's only options were to "cease the seizure or secure a new justification", meaning a new warrant reaching the non-responsive material. The government chose to cease, and the court knew of no basis on which it could compel the alternative.
That disposed of the Brady argument without reaching it. The court held that the Fifth Amendment duty to search for and disclose exculpatory evidence is subordinate to Fourth Amendment limits on unreasonable seizures in this context, and it observed that Brady obligations extend only to information in the government's possession, custody, or control. The court acknowledged that applying these precedents "rewards the very conduct they seek to deter".
The order points the defendants to Rule 17(c)(1), which contemplates subpoenas to Brevet and Olson, and states the court's expectation that both preserve responsive evidence.
Why It Matters
A preservation demand aimed at ESI in government custody carries a hidden clock. The longer the government sits on unscoped images, the stronger its argument that it must now let them go. Raise a scoping delay early and treat government inaction as a reason to move rather than a reason to wait.
Get preservation into an order. The commitment in January 2026 to a filter-side production gave way in April to a notice proposing transfer and deletion.
Test what arrives from third parties on receipt. Corrupted and inaccessible documents from the receiver are what sent the defense back to the forensic images in the first place.
Identify who will end up holding the data. The practical route to this evidence now runs through Brevet and Olson under Rule 17(c)(1) rather than through the government.
The full opinion is available as a PDF.
