Keith R. GRAYSON, Plaintiff, v. Kathy H. WITT, individually And in her official capacity as Sheriff of Fayette County, Kentucky, and Joseph A. Modica, Defendants Civil Action No. 5:07-221-JMH United States District Court, E.D. Kentucky, Central Division at Lexington May 16, 2008 Counsel Everett C. Hoffman, Priddy, Cutler, Miller & Meade, PLLC, Louisville, KY, for Plaintiff. Daniel Luke Morgan, Stephen Garrett Amato, McBrayer, McGinnis, Leslie & Kirkland, PLLC, Lexington, KY, for Defendants. Hood, Joseph M., United States District Judge MEMORANDUM OPINION AND ORDER *1 This matter is before the Court on Defendants' Objections to the Magistrate Judge's Discovery Order and Request for Modification [Record No. 33]. Plaintiff has filed a Response in opposition [Record No. 38]. This motion is now ripe for decision. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Grayson served as a major with the Fayette County Sheriff's Office until July 2007, when he was discharged from his employment by Defendant Witt, Sheriff of Fayette County. As the Court understands the allegations, Defendant Witt received information that Plaintiff may have used his home computer to purchase access to an Internet site suspected of containing unlawful pornographic images. Defendants initiated an internal administrative investigation of these actions. As part of that investigation, a laptop computer and another personal computer were confiscated from the Plaintiff's home by Defendant Modica (whether this action was accomplished with the permission of Plaintiff remains disputed, but the resolution of this dispute is not necessary for a decision on Defendants' objections and request for modification). Plaintiff was placed on paid administrative duty while the investigation was ongoing. He was eventually given notice that a Disciplinary Review Board was being impaneled to consider two charges against him: (1) Unbecoming Conduct and (2) Honesty. The Review Board concluded that there was insufficient evidence to support the claims against him. Defendant Witt determined, notwithstanding the conclusion reached by the Review Board, that Plaintiff's employment with the sheriff's office would be terminated. In the interim between the seizure and Plaintiff's Disciplinary Review Board hearing, some analysis of the hard drives was completed at the behest of Defendant Witt. Apparently, a “mirror image” of the hard drives was ordered to be made shortly after the computers were seized but “after the Plaintiff withdrew his voluntary consent to the computers' collection and examination.” [Record No. 33 at 3, f.n. 3.] This was done so that the data thereon could be analyzed without endangering the integrity of the hard drives. An analysis of the mirror images was then performed by a purported expert, Cobb. Cobb expressed to Defendants in a report that certain images found in the data may, in fact, be images of child pornography. Nonetheless, as the Court understands it, Defendant Witt has taken the position in discovery in this action that she neither saw nor relied on the actual contents of the hard drives of the computers seized from Plaintiff in making her decision to terminate his employment. Further, it is the Court's understanding that no evidence of the contents of the hard drives was provided to the Disciplinary Review Board. Plaintiff filed his complaint in this matter on July 12, 2007, seeking monetary damages and prospective injunctive relief under the auspices of 42 U.S.C. § 1983 against Witt and Defendant Modica, another major with the Fayette County Sheriff's Office. Plaintiff has also raised Kentucky state law claims against Defendant Witt, alleging violations of his Kentucky constitutional and statutory rights in the termination of his employment. With regard to his federal claims, Grayson averred that his employment was unlawfully terminated and that he experienced an unlawful search and seizure in violation of his rights guaranteed by the First, Fourth, and Fourteenth Amendments to the United States Constitution.[1] *2 The parties to this matter have been engaged in discovery. Defendants filed a motion requesting a protocol for the discovery of computer data (already in their possession) taken from the computers seized from Plaintiff's residence. Magistrate Judge Todd entered an order denying Defendants' motion on February 22, 2008. II. DISCUSSION The order of a magistrate judge will be set aside only upon a showing that the order is contrary to the law or clearly erroneous. Fed.R.Civ.P. 72(a). Defendants argue that their motion sought only to establish a protocol for the discovery of the Plaintiff's hard drives which they believe to contain child pornography. As such, they “believe that such an Order is necessary under 18 U.S.C. § 2256.” [Record No. 33 at 2.] Because, in Defendant's eyes, the question of admissibility has not yet been raised, they argue that the liberal rules of discovery that apply “are sufficiently broad so as to permit the development of this evidence and reserve for later determination, questions of admissibility.” [Id.] Defendants urge this Court to conclude that Magistrate Judge Todd, thus, erred. For the reasons which follow, the Court disagrees with defendants. In a civil matter, the scope of discovery is limited to “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1) (emphasis added). Thus, relevance, not admissibility, is at the heart of the dispute presented here. Defendants claim that the discovery of what data is contained on the mirror images of the hard drives is necessary so that they may fully develop their defenses to Count I of Plaintiff's Complaint. In Count I, Plaintiff claims that Defendants wrongfully seized and retained his property without a warrant in violation of the Fourth Amendment of the United States Constitution. Specifically, defendants argue that the content of the hard drives is relevant to the rationale for Defendants' continued retention of the computers from and after the date the Defendants were advised of the alleged existence of images of child pornography by Cobb. Defendants have, no doubt, been placed between the proverbial rock and a hard place. Believing that there might be pornographic images of children contained on the hard drives of the computers in their possession and having received the so-called “Cobb report” which may allege the existence of child pornography on those hard drives, Defendants argue that there “was no possible way [the hard drives or data] could be returned to the Plaintiff.”[2] That said, the Court takes issue with Defendants' argument that the decision of the Magistrate Judge wrongfully precludes Defendants “from establishing the truth of the Plaintiff's conduct.” [Record No. 33 at 6.] One must return to the concept of relevance. Every citizen has a right under the Fourth Amendment to the United States Constitution to be secure in their homes and the possessions contained therein where probable cause does not reasonably warrant an intrusion. Searches effected without a warrant are presumptively unreasonable and violative of the Fourth Amendment's mandate that all governmental searches must be reasonable. See, e. g., United States v. Hudson, 405 F.3d 425, 441 (6th Cir.2005). This right extends to all-from model citizens to the most depraved among us.[3] *3 Without prejudging the matter at hand, the Court notes that the absence of a warrant based on the knowledge that Defendants had at the time of the search and seizure of the computers is the starting point for the analysis of the merits in this case. Absent consent of the party from whom an item is seized, a valid exception to the warrant requirement must be demonstrated by the party effecting the warrantless seizure, and there will be no inquiry into whether a defendant's act is justified ex post facto by what is uncovered by virtue of the warrantless search and seizure. See United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (“warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered”); Byars v. United States, 273 U.S. 28, 29, 47 S.Ct. 248, 71 L.Ed. 520 (1927) (“search prosecuted in violation of the Constitution is not made lawful by what it brings to light; and the doctrine has never been recognized by this court, nor can it be tolerated under our constitutional system”); see also Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (“items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued”). A subsequent discovery that illegal images existed on the hard drives would not cure a wrongful seizure, if a wrongful search and seizure occurred. Evidence obtained as a result of the search and seizure is irrelevant to a determination of whether Plaintiff's rights under the Fourth Amendment were violated. Whether Defendants could or should have returned the data in question to Plaintiff under the circumstances is no more relevant, particularly Plaintiff has disavowed any right to recovery for monetary damages based on the value or loss of use of any software, data, or other files or information contained on the hard drives of his computers at the time they were seized by defendants.[4] The Court can, however, take Defendants to task for their failure to adequately mind the strictures of the Fourth Amendment in seizing Plaintiffs computers, if such a failure is demonstrated through admissible evidence. The Court cannot turn a blind eye to a failure of form under the Fourth Amendment-where it is not permitted or excused by the law-simply because the ends might justify the means in the eyes of Defendants or anyone else. It follows that Magistrate Judge Todd's Order was neither contrary to the law nor clearly erroneous, and the Court will not set it aside. See Fed.R.Civ.P. 72(a). Accordingly, and for the foregoing reasons, IT IS ORDERED that Defendants' objections [Record No. 33] to Magistrate Judge Todd's Order shall be, and the same hereby are, OVERRULED. Footnotes [1] Plaintiff has since announced the withdrawal of his claim for violation of the First Amendment, subject to reinstatement, as inconsistent with discovered evidence. [See Record No. 32 at 25:3-18 and 26:16-19.] [2] Indeed, as noted by Magistrate Judge Todd, if the computers did contain child pornography, Defendants could not legally return such contraband to plaintiff. 18 U.S.C. § 3509(m) prohibits the reproduction of child pornography for discovery purposes. [3] That security is not, of course, inviolate. There are prescribed methods by which warrants may be obtained and, yes, exceptions made for emergent and other situations by which search and seizure may lawfully occur. Indeed, consent by an individual to a search makes a warrant unnecessary. See Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Hudson, 405 F.3d at 441 (noting that an officer with consent to search requires neither a warrant nor probable cause to carry out the search). Of course, the issue of consent is disputed in this matter. [4] The Court does not agree with Defendants that it is impossible to determine the value of the “collected” or “seized” computer hardware without consideration of the software and data contained on the computers' hard drives.