Abstract
When a criminal defendant subpoenas the personal electronic device of a person who is not a party to the prosecution, American procedure has no coherent answer. The Fourth Amendment does not reach the request, because the movant is not the government. The criminal discovery rules do not fit it, because the target is not a party. The victims’ rights provisions adopted in most states since the 1980s speak to the interest but supply neither counsel nor timely remedy. The result is an unstructured judicial balancing act conducted, characteristically, on the eve of trial and under scheduling pressure that reliably favors production. This article uses the pretrial litigation in State v. Gardner — in which counsel for a defendant accused of arranging her ex-husband’s murder obtained a court-ordered forensic extraction from the phone of the victim’s widow — to identify the structural defects in current practice, and proposes a model statute that regulates the process of compelled non-party disclosure without foreclosing any evidence to which a defendant is constitutionally entitled.
I. Introduction
On February 16, 2022, Jared Bridegan was shot on a residential street in Jacksonville Beach, Florida, minutes after leaving the home of his former wife, Shanna Gardner, and with his two-year-old daughter in the back seat. Gardner, her then-husband, and a third man were charged in what prosecutors describe as a murder-for-hire. In the summer of 2026, while the first of the three trials was underway, Gardner’s counsel sought and obtained an order requiring Kirsten Bridegan — the victim’s widow, a witness in the case, and a party to nothing — to surrender her cellular telephone for forensic examination.
The stated predicate was witness tampering. A witness had told a defense investigator that she was unwilling to speak with him without first obtaining the widow’s permission. From that remark, and from the fact that the widow had exchanged a large volume of messages with several witnesses across four years, the defense argued that the widow might be shaping testimony, and that her communications with those witnesses, with the State Attorney’s Office, with law enforcement, and with a public advocacy page maintained in the victim’s name were therefore discoverable. Prosecutors called the request a fishing expedition and invoked the heightened privacy protections Florida’s constitution affords crime victims. The trial court conducted a sealed proffer, entered an order narrowing the categories of material the defense could receive, and reserved to itself the in camera review of what would ultimately be released. A further dispute erupted over the identity of the forensic vendor, the widow’s counsel objecting that the defense-selected examiner appeared to be an extension of the defense team. The court permitted substitution of an independent examiner and ordered the device surrendered.
Every participant in that litigation, including the bench, characterized the governing law as gray. They were correct, and the greyness is not a failure of the judge or of counsel. It is a gap in the architecture of criminal procedure, and it has become consequential only recently, because the object at issue — a general-purpose repository of a person’s entire documented life, carried in a pocket — is a recent artifact for which the law of compelled production was not designed.
This article proceeds in four movements. Part II locates the doctrinal gap. Part III describes the Florida setting, which sharpens rather than creates the problem. Part IV identifies three structural defects the Gardner litigation exposes. Part V takes the defense interest seriously, since any proposal indifferent to compulsory process is not worth drafting. Part VI recovers two principles from the older law that identify what modern doctrine has mislaid. Parts VII and VIII set out design commitments and a model act. Part IX answers the predictable constitutional objections.
II. The Doctrinal Orphan
A. State Action Without Fourth Amendment Constraint
The Fourth Amendment restrains government searches and seizures. A subpoena issued at the request of defense counsel is not, on the conventional account, government action, and so the entire body of doctrine that would otherwise govern the forced acquisition of a person’s phone — probable cause, the particularity requirement, the historic prohibition on general warrants — is inapplicable by its own terms.
This produces the sharpest anomaly in the field. Had the State of Florida wished to examine Kirsten Bridegan’s telephone, it would have required a warrant supported by probable cause to believe that evidence of a crime would be found there, and the warrant would have had to describe with particularity the things to be seized. Riley v. California, 573 U.S. 373 (2014), made that requirement categorical for cellular telephones incident to arrest, and Carpenter v. United States, 585 U.S. 296 (2018), extended the underlying reasoning to digital records held by third parties. A private litigant, by contrast, may reach the same device on a showing that a witness once expressed loyalty to its owner. The party bearing fewer constitutional obligations obtains the broader access.
The anomaly is less clean than it first appears, and the imprecision is where reform must begin. A defense subpoena has no force of its own. It is worth exactly what a court will do to enforce it, and what a court will do is imprison the recipient for contempt. The compulsion is judicial. There is state action in every enforced subpoena; what is absent is any judicial willingness to import Fourth Amendment values into the standard governing issuance. Courts have treated the private origin of the request as though it exhausted the analysis, when the operative act is the court’s own.
B. Non-Party Status and the Misfit of Discovery Rules
The criminal discovery rules allocate obligations between the parties. Florida Rule of Criminal Procedure 3.220 governs what the State and the defendant owe each other; it has nothing to say about a stranger’s private papers. A non-party is reached instead by subpoena, and the governing standard is the one set out in United States v. Nixon, 418 U.S. 683 (1974): the movant must establish relevancy, admissibility, and specificity, and must show that the request is not a general fishing expedition. Nixon rested on Bowman Dairy Co. v. United States, 341 U.S. 214 (1951), for the proposition that a subpoena duces tecum in a criminal case is not a discovery device but an instrument for producing identified evidence at trial.
Applied honestly, that standard disposes of a request framed by reference to a device. “Her phone” identifies a custodian, not evidence. The Nixon test contemplates a movant who can name the document he wants and say why it is admissible. A movant who must extract a device in order to learn what is on it has, by definition, failed the specificity prong. That the test is nonetheless routinely satisfied in practice reflects not doctrinal ambiguity but a habit of treating Nixon as a rhetorical gesture rather than a threshold.
C. Two Standings, Conflated
The Gardner litigation, like most such disputes, used the word “standing” to mean two incompatible things.
The first is participatory standing in the criminal case: the right of a victim to be heard on matters affecting her, conferred in Florida by Article I, Section 16(b) of the state constitution, adopted by referendum in 2018 as Marsy’s Law. That standing is genuine but thin. It is asserted in a proceeding to which the victim is not a party, against a defendant whose competing entitlements are federal, and courts have consistently held that state victims’ rights provisions yield where they collide with the Sixth and Fourteenth Amendments.
The second is proprietary standing: the ordinary right of any person, victim or not, to move to quash compulsory process directed at her own property and her own private papers. That right is not limited, contingent, or derivative. It does not depend on victim status; a wholly uninvolved neighbor would possess it in identical measure. The holder of the device is not a bystander to the motion. She is its subject.
The practical harm of the conflation is that the weaker standing crowds out the stronger. Once a person enters the courtroom labelled “victim,” her objection is processed as an assertion of victims’ rights — a category courts approach with the settled expectation that it must give way — rather than as what it also is: a property owner’s objection to a general search of her papers, a claim with a far older pedigree and no built-in subordination to the defendant’s trial rights.
III. The Florida Setting
Three features of Florida law shape the dispute without originating it.
First, Florida permits discovery depositions in criminal cases, a practice most American jurisdictions reject. Rule 3.220(h) makes the criminal defendant in Florida unusually well positioned to develop facts before trial, and the subpoena duces tecum operates in that deposition-rich environment as an adjunct to a discovery culture rather than as the narrow trial instrument Nixon describes. The Gardner defense secured a second deposition of the widow before it sought her device; the deposition disclosed the volume of her communications with witnesses; that volume then became the justification for the device request. The mechanism is self-feeding.
Second, Marsy’s Law states interests without supplying machinery. Article I, Section 16(b) grants the victim rights to be treated with dignity, to have standing, to be heard, to be free from unreasonable delay, and — most pertinently — to prevent disclosure of information or records that could be used to locate or harass the victim or her family or that would disclose confidential or privileged information about her. The provision also states that a victim may seek enforcement in any trial or appellate court. What it does not supply is counsel, a burden of proof, a procedural default, an interlocutory stay, or any consequence for violation. The Florida Supreme Court’s decision in City of Tallahassee v. Florida Police Benevolent Association (Fla. 2023), holding that the amendment does not categorically shield victims’ identities from public records disclosure, confirms the general pattern: the provision is read narrowly wherever it meets an established competing body of law.
Third, Florida has an express constitutional right of privacy, Article I, Section 23, textually stronger than anything in the federal charter, and Florida courts have long derived from it a requirement that a person receive notice and an opportunity to object before her private records are subpoenaed from a custodian. That line of authority — developed largely in the medical and financial records context — is the most promising existing foothold for the argument advanced here, and it is notable that it rests on ownership rather than on victim status.
IV. Three Structural Defects
A. The Device-Document Collapse
Riley explained at length why a modern telephone is not a container. It holds a comprehensive record of a life: correspondence, photographs, location history, financial records, health data, reading habits, and the contents of every account synchronized to it. A search of such a device is more revealing than a search of the house.
That reasoning has been quarantined within Fourth Amendment law. In subpoena practice, courts continue to speak of “the phone” as though it were a filing cabinet with a labeled drawer. In Gardner the abstraction had concrete content. The device belonged to a woman whose husband had been shot in front of their infant daughter; it carried photographs of him, four years of communications with the children she is raising alone, her correspondence with the prosecutors preparing the case, and whatever private record grief produces over that span. An order to surrender it for extraction is, in substance, a general warrant issued by a court to a private litigant.
The trial court’s instincts were sound: narrow the categories, review in camera, release only what carries genuine evidentiary weight, and replace an examiner too closely tied to the movant. The criticism is not of those rulings but of their status. Each was improvised under time pressure in response to an objection, when each should have been the statutory default that a movant must argue his way past.
B. The Predicate-Accusation Bootstrap
The lever in Gardner was an allegation of witness tampering. Tampering is a serious felony in Florida, Fla. Stat. § 914.22, and if the widow had committed it, the communications establishing it would be plainly material. But the evidentiary basis offered was a witness’s statement that she wanted the widow’s blessing before speaking to an investigator, together with the sheer volume of lawful messaging among people connected by a shared bereavement.
Neither is tampering, and the gap matters structurally rather than merely on these facts. If an unproven accusation of misconduct by the device’s holder suffices to open the device, then the accusation is self-executing. Any competent counsel can generate one. Its cost, if false, is nothing: the movant looks, finds no tampering, and keeps whatever else the extraction surfaced. The asymmetry is not incidental to the practice; it is the practice’s engine. A rule that permits an accusation to function as a master key while attaching no consequence to a failed accusation will produce accusations.
C. The Remedial Vacuum
A defendant whose rights are violated in discovery has suppression, mandamus, reversal, and retrial. A non-party whose privacy is destroyed in discovery has, in practice, nothing.
There is no exclusionary remedy, because exclusion runs to defendants. There is no damages action of any practical utility. There is no timely appellate route, and timeliness is dispositive here in a way it is not elsewhere: an erroneously ordered production cannot be undone. Once the image exists and counsel has read it, a reversal on review restores nothing. Privacy is among the few interests for which after-the-fact vindication is simply unavailable.
The vendor fight in Gardner is the clearest symptom. The person whose life was on the device had to litigate, in real time and days before a murder trial, over who would be permitted to copy it — because no rule specified in advance that the examiner must be neutral, that the image must belong to the court, or that it must be destroyed at the conclusion of the case. Where a statute is silent, everything becomes a motion, and the party least able to bear the cost of motion practice is the one with no seat at the table.
V. The Countervailing Interest
Any proposal in this area must be tested against the following, all of which are strong.
A defendant facing life imprisonment holds a Sixth Amendment right to compulsory process, Washington v. Texas, 388 U.S. 14 (1967), and a due process right to present a complete defense that can override otherwise valid state evidentiary rules, Chambers v. Mississippi, 410 U.S. 284 (1973); Crane v. Kentucky, 476 U.S. 683 (1986); Holmes v. South Carolina, 547 U.S. 319 (2006). The right to impeach a witness for bias is constitutionally protected, Davis v. Alaska, 415 U.S. 308 (1974). Pennsylvania v. Ritchie, 480 U.S. 39 (1987), supplies the accommodation model this article builds on — in camera judicial review of protected records, with release of material evidence — but Ritchie also drew a vigorous objection that a judge reviewing records cold is a poor substitute for an advocate who knows the theory of the defense. That objection is real and cannot be answered by pretending otherwise.
Witness coordination is likewise a real phenomenon and not a defense fantasy. Where it occurs, the communications themselves are frequently the only evidence of it, and the State has no incentive to develop them. The resource asymmetry between a state attorney’s office with police, laboratories, and subpoena power, and a defense team with an investigator, is severe; a rule that makes third-party discovery prohibitively expensive deepens it.
There is also a genuine difficulty in the demand that counsel justify the request on the record. Requiring a lawyer to articulate a cross-examination strategy in open court, in front of the witness who will face it, imposes a real cost, and the Gardner defense was right to say so. But sealed proffers purchase confidentiality at the price of adversarial testing, which is precisely what makes a specificity requirement bite. A workable rule must permit the court to hear the proffer without rendering the movant’s showing unreviewable and unopposed.
The object, accordingly, is not prohibition. It is the conversion of an unstructured balancing act into a procedure with an allocated burden, a stated standard, a technical protocol, and a consequence for abuse.
VI. Antecedents in the Older Law
Two principles from the law given at Sinai bear directly on this problem, and they identify what present doctrine has mislaid. They are offered here not as decorative analogy but because they state the operative distinctions with a precision modern practice has lost.
The first governs the manner of taking. “When thou dost lend thy brother any thing, thou shalt not go into his house to fetch his pledge. Thou shalt stand abroad, and the man to whom thou dost lend shall bring out the pledge abroad unto thee” (Deuteronomy 24:10–11). The creditor’s claim is assumed valid; his right to security is not in question. What is forbidden is the mode of collection. He may not cross the threshold and select for himself. He states what he is owed and receives it at the door.
That is exactly the line between a subpoena for identified communications and an order to image a device. The distinction is not between having a right and lacking one; it is between exercising a right through a defined demand and exercising it by rummaging. A related restraint, “No man shall take the nether or the upper millstone to pledge: for he taketh a man’s life to pledge” (Deuteronomy 24:6), marks a further category — the thing whose seizure disables the ordinary conduct of life, and which therefore may not be taken at all. The telephone in the hand of a widow raising three children, containing her contact with her children’s school, her physician, her counsel, and her surviving family, sits nearer that category than it does to a filing cabinet.
The second governs the cost of a failed accusation. “Thou shalt not raise a false report: put not thine hand with the wicked to be an unrighteous witness” (Exodus 23:1). The enforcement mechanism follows in Deuteronomy 19:16–19: where one man accuses another of wrongdoing, “the judges shall make diligent inquisition,” and if the accusation proves false, “then shall ye do unto him, as he had thought to have done unto his brother.” Two features of that procedure are directly instructive. Diligent inquiry precedes consequence — the accusation does not operate until it is tested. And the risk of the accusation is symmetrical with its power — the accuser bears what he sought to impose.
Present practice inverts both. The accusation of tampering operates immediately, unlocking the device before it is tested; and if it dissolves, nothing whatever follows. Restoring symmetry between the leverage an accusation confers and the risk it carries is the single most useful thing a statute in this field can do, and Part VIII, subsections (5)(f) and (11), does it.
VII. Design Commitments
Six commitments follow from the foregoing.
- Regulate process, not access. No provision may foreclose evidence a defendant is constitutionally entitled to obtain.
- Bind both parties identically. A rule that burdens only defendants invites, and deserves, invalidation.
- Shift the unit of production from device to communication. What is produced should be an identified exchange, not a hard drive.
- Supply counsel, notice, and interlocutory review to the non-party. An interest without an advocate and without a stay is not protected; it is merely named.
- Make preservation the presumptive first response. A preservation order costs the holder nothing and the movant no evidence, and it dissolves the eve-of-trial urgency that drives over-broad rulings.
- Price a false predicate. Where access was obtained on an allegation of misconduct that proves baseless and was made without objectively reasonable ground, fees and referral should follow.
VIII. The Model Act
AN ACT relating to compelled disclosure of personal electronic device contents from persons who are not parties to a criminal prosecution; creating s. 960.0027, Florida Statutes; providing definitions, a threshold standard, procedural safeguards, appointment of counsel, protective conditions, sanctions, and appellate review; providing a constitutional savings clause.
Section 960.0027 — Compelled Disclosure of Personal Device Contents from Non-Parties
(1) SHORT TITLE. This section may be cited as the “Victim and Witness Device Privacy Act.”
(2) DEFINITIONS. As used in this section:
(a) “Protected person” means any natural person who is not a defendant in the criminal proceeding, including a victim, a survivor of a deceased victim, a witness, and a family member of any of the foregoing.
(b) “Personal electronic device” means any device or cloud-linked account under a protected person’s control that stores personal communications or data, including mobile telephones, computers, tablets, wearable devices, messaging accounts, social media accounts, and backup or synchronization services.
(c) “Device contents” means any data stored on or accessible through a personal electronic device, including communications, photographs, video, audio, location history, health and biometric data, financial data, application data, browsing history, and metadata.
(d) “Compelled disclosure” means any subpoena, order, or other process, sought by the state or by a defendant, requiring a protected person to produce device contents, to surrender a device for examination, to authorize extraction, or to execute a release to a service provider.
(e) “Targeted communication” means a communication or record identified by named participants, a date range not exceeding what the movant has justified, and a described subject matter.
(f) “Full-device extraction” means any forensic image, bulk export, or acquisition of device contents not limited to targeted communications.
(3) APPLICATION. This section applies to all compelled disclosure of device contents from a protected person in any criminal proceeding, whether sought by the state or by a defendant, and whether sought before, during, or after trial. Nothing in this section limits a search conducted pursuant to a warrant issued on probable cause, or a knowing and voluntary consent given after the protected person has been advised of the right to refuse and of the right to counsel under subsection (6).
(4) PROHIBITION ON FULL-DEVICE EXTRACTION. A court may not order full-device extraction from a protected person. Compelled disclosure shall be limited to targeted communications. Where extraction by a neutral examiner is the only technically feasible means of retrieving targeted communications, the court shall proceed under subsection (7); the resulting image shall be the property of the court, shall not be delivered to any party, and shall be destroyed upon conclusion of the proceeding and any appeal.
(5) THRESHOLD SHOWING. A court may not order compelled disclosure unless the movant establishes on the record each of the following:
(a) The request identifies targeted communications with particularity. A request framed by reference to a device, an account, or a person’s communications generally does not satisfy this paragraph.
(b) Specific and articulable facts, not conclusory assertions, support a reasonable belief that the targeted communications exist and contain material evidence.
(c) The evidence sought is material to guilt, innocence, punishment, or the credibility of a witness whose testimony is expected to be material, and is not cumulative.
(d) The evidence is not obtainable from any less intrusive source, including deposition, party discovery, records already produced, or the accounts of other participants to the communications.
(e) The need for the evidence outweighs the protected person’s privacy interest, considering the volume and sensitivity of what would be exposed, the protected person’s relationship to the offense, and any history of harassment of the protected person.
(f) Heightened showing for accusation-based requests. Where the request is predicated on an allegation that the protected person has engaged in witness tampering, obstruction, or coordination of testimony, the movant shall establish that allegation by clear and convincing evidence before disclosure is ordered. A witness’s reluctance to speak with an investigator, a witness’s expression of loyalty to or support for the protected person, the volume or frequency of lawful communication among persons connected to the offense, and the protected person’s public advocacy, media participation, or criticism of counsel shall not, alone or in combination, satisfy this paragraph.
(6) NOTICE, COUNSEL, AND STANDING.
(a) A movant shall serve the protected person with the motion, the proposed scope, and a plain-language notice of rights under this section not fewer than twenty days before any hearing. No process may issue before notice and an opportunity to be heard.
(b) The protected person has full standing to be heard on the motion, to conduct discovery limited to the factual predicate asserted under paragraph (5)(f), to present evidence, to examine witnesses, and to seek review under subsection (10). This standing arises from ownership of the device contents and is independent of the person’s status as a victim.
(c) The court shall appoint counsel at state expense for any protected person not otherwise represented as to the motion. The state attorney does not represent the protected person for purposes of this section, and the protected person’s interest shall not be treated as merged into the state’s.
(7) JUDICIAL PROCEDURE.
(a) The court shall conduct an evidentiary hearing and shall enter written findings addressing each element of subsection (5).
(b) Where a movant asserts that public disclosure of its theory would reveal privileged strategy, the court may receive the proffer in camera. Counsel for the protected person shall be permitted to attend, subject to a nondisclosure order barring communication of its contents to the protected person. The proffer shall be transcribed and sealed for appellate review.
(c) Extraction and review shall be performed only by a neutral examiner appointed by the court. No person retained by, performing work for, or holding a financial relationship with any party or counsel in the proceeding is eligible for appointment. Cost shall be borne by the movant, except that where the movant is an indigent defendant the cost shall be borne by the state.
(d) The court shall enter a written search protocol before extraction, specifying custodians, date ranges, search terms, and data types. The examiner shall deliver results only to the court.
(e) The court shall review the results in camera and shall release to the parties only those items satisfying subsection (5). All other material shall be sealed and returned or destroyed. Material released shall be disclosed simultaneously to all parties.
(8) PRESERVATION IN LIEU OF PRODUCTION. On motion of any party or on its own motion, the court shall enter a preservation order directing a protected person to preserve identified device contents. A preservation order is the presumptive first response to any request under this section and may issue on a lesser showing than subsection (5) requires. The imminence of trial shall not by itself justify relaxing subsection (5); where preservation has been ordered, the court shall instead consider a continuance.
(9) PROTECTIVE CONDITIONS. Material released under this section is subject by operation of law, without need for motion, to the following:
(a) Disclosure limited to counsel of record, retained experts, and the defendant; use limited to the criminal proceeding.
(b) Prohibition on republication, transmission to third parties, and use in any civil, family, probate, administrative, or media matter.
(c) Filing under seal, with courtroom use governed by an order entered after the protected person has an opportunity to be heard.
(d) Return or destruction, with certification, within thirty days after final disposition.
(e) Violation punishable as criminal contempt and reportable to the state bar.
(10) REVIEW. An order granting compelled disclosure is subject to immediate review by petition for writ of certiorari. Production shall be automatically stayed upon filing and until the district court of appeal rules, and such petitions shall receive expedited treatment. No trial court shall condition a continuance, a scheduling accommodation, or any other ruling upon a protected person’s forbearance from review.
(11) SANCTIONS AND FEE-SHIFTING.
(a) Where disclosure was ordered on a predicate under paragraph (5)(f) and the material produced does not substantiate that predicate, the court shall determine whether the movant had an objectively reasonable basis for the assertion when made.
(b) On a finding that the assertion lacked an objectively reasonable basis, the court shall award the protected person reasonable attorney fees, examiner costs, and expenses, taxed against the movant’s counsel personally and not against an indigent client, and shall refer the matter to the state bar.
(c) A finding under this subsection shall not be used against a defendant at trial or sentencing, shall not be disclosed to the jury, and shall not be a ground for excluding otherwise admissible evidence.
(12) NEUTRALITY. This section applies identically to the state and to the defense. No provision shall be construed to impose a greater burden on a defendant than on the state.
(13) CONSTITUTIONAL SAVINGS CLAUSE. Where a court finds, on written findings identifying the specific evidence and the specific defense theory, that applying subsections (4) through (9) would deprive a defendant of a right secured by the Sixth or Fourteenth Amendment to the United States Constitution or by Article I, Section 16 of the Florida Constitution, the court shall order the least disclosure necessary to cure the deprivation, employing the neutral examiner and protective conditions of subsections (7) and (9) to the maximum extent compatible with the defendant’s rights. This subsection shall not be construed to permit full-device extraction delivered to a party.
(14) SEVERABILITY; EFFECTIVE DATE. [Standard provisions.]
IX. Anticipated Objections
Objection 1: The Act burdens compulsory process and is void under Chambers.
Three features answer this. The Act forecloses no category of evidence; every item obtainable under current practice remains obtainable, through a channel with a written record and a chain of custody. It binds prosecutors identically under subsection (12), so it cannot be characterized as legislative partiality against the accused. And subsection (13) preserves the constitutional floor in terms, which is the feature distinguishing a procedural statute from the categorical state rules invalidated in the Chambers line. Chambers struck down a rule that excluded reliable exculpatory evidence altogether; nothing here excludes anything.
Objection 2: Paragraph (5)(f) makes tampering unprovable by requiring proof of tampering.
The paragraph is confined to a single posture. It does not apply where a movant seeks a communication because of what the communication is expected to contain. It applies only where the movant seeks access to a person’s records because of an alleged wrong by the holder — that is, where the accusation is doing the work that specificity would otherwise do. In that posture the movant is advancing a factual claim of misconduct, and requiring that claim to be established before it operates as a key is ordinary practice rather than innovation. Where a movant possesses evidence of tampering sufficient to justify the request, he possesses evidence sufficient to meet the standard. Where he does not, the request is what the prosecution called it.
Objection 3: In camera judicial review is an inadequate substitute for advocacy, as the Ritchie dissent observed.
Correct, and subsection (7)(b) is the partial answer: the court receives the movant’s theory under seal so that review is theory-informed rather than cold, while counsel for the protected person attends under a nondisclosure order so that the showing is tested by someone. This does not fully solve the Ritchie problem. No mechanism does, short of giving the movant the records — which is the very thing at issue.
Objection 4: Appointed counsel for non-parties is unaffordable.
The cost is bounded. It attaches only where a device motion is filed, in the small class of cases where such motions are filed at all, and it is offset by the reduction in satellite litigation that clear defaults produce. It is also the provision that does the most work: subsection (6)(c) and subsection (10) together are what convert a stated interest into a protected one. Marsy’s Law, and the federal Crime Victims’ Rights Act on which it draws, gave victims rights without an advocate or a timely remedy — a locked door with the key on the far side.
Objection 5: Preservation orders merely defer the fight.
They defer it out of the pressure zone, which is the point. When a device motion lands three weeks before jury selection, a trial judge choosing between over-broad production and permanent loss of the evidence will order production, and should. Subsection (8) dissolves that false choice by guaranteeing that the evidence survives the delay, so that the merits can be litigated on a normal schedule or after a continuance.
X. Conclusion
The pretrial litigation in Gardner is instructive precisely because the trial court’s instincts were sound. The judge narrowed the categories, insisted on reviewing communications before release, and replaced a forensic examiner too closely aligned with the movant. Each ruling was correct. Each had to be won, in open court and under trial-eve pressure, by a woman whose husband was killed in front of their two-year-old daughter, at her own expense, against counsel who bore no risk in asking.
The function of a statute in this field is to make that outcome the starting position rather than the prize. The older law understood the distinction the modern law has lost: that a valid claim does not authorize entry, that the creditor waits at the door while the pledge is brought out to him, and that an accusation which carries power must also carry risk. Nothing in those principles denies the accused a defense. They govern the manner of the taking, not the right to be paid. That is the whole of what is proposed here.
