Computer Forensics Legal Precedence

The Ashkelon Group: Legal Precedence

• Post Transmission Storage is Fair Game
  White v. White. New Jersey domestic decision making post transmission electronic media storage (email) fair game.
• Aggressive Pursuit of Spoliation Reaps Rewards
  Excellent article on computer forensics and spoliation issues. Copy also available on Harvard Cyber Law site
• US v Knellinger
  Federal case allowing defense to obtain copies of contraband material derived from computer forensic investigation..
• Westerfield v. The Superior Court of San Diego County
  California case allowing defense to obtain copies of contraband material derived from computer forensic investigation.
• Crown Life Insurance v. Craig
  US Court of Appeals case discussing sanctions against Crown for failure to comply with discovery order requesting raw data from a database to be examined directly.
• Preservation: Analysis
  Analysis of data preservation and its impact on litigation. Copy also available on Harvard Cyber Law site.
• Discovery and the use of computer based information in litigation
  Well known article from the Rhode Island Bar Journal by the esteemed Peter Lacouture, Esq. from the mid-1990s. The title says it all. Copy also available on Harvard Cyber Law site.
• Computer Forensics In the Age of Electronically Stored Data
  Well written and concise article written by Joel H. Mirman. This article covers data retention policies, who pays for forensics, when to use forensics, how to respond to a lawsuit, and a great deal more information.
• Gates Rubber v Bando Chemical Destruction of Evidence
  Gates alleged chronic and continuous destruction of evidence and other violations. Court dismisses most of its claims, but does find that defendant destroyed word processing files that warranted sanction of ten percent of attorney¹s fees. The case has a long discussion of the elements of spoliation and the need for evidence of what was spoliated as a basis for drawing inference, and finds no spoliation.
• Lexis-Nexis v Beer Sanctions
  Employer sued employee for misappropriation to trade secrets. Following temporary restraining order requiring employee to turn over copy of database he made when he resigned, employer moved for sanctions, claiming employee had destroyed critical parts of database to avoid discovery and in violation of TRO. Court found that sanction of drawing inferences against employee for missing info was not appropriate, but imposed monetary sanctions against employee for violating TRO.
• Linnen v Robins Failure to Preserve
  Fen-Phen litigation. Defendant Wyeth fails to preserve emails and then fails to turn over all emails and database info requested in discovery and subject to court order. This memo orders production of relevant emails by Wyeth and imposes costs of production on Wyeth. Also sanctions Wyeth and allows spoliation inference to jury for Wyeth¹s destruction of emails. Refers to “inexcusable conduct” by Wyeth several times.
• Mathias v Jacobs Spoliation
  Spoliation of information in Palm Pilot. Court ruled that Plaintiff had duty to preserve info in Palm Pilot that she knew might be relevant. But info is still discoverable, albeit in a more difficult way, so does not warrant dismissing case or allowing adverse inference. However, monetary sanctions imposed from costs as a consequence of spoliation.
• P&G v Haugen Failure to Preserve
  P & G sued competitor and competitor’s distributors for spreading rumors of P&G’s Satanism, specifically alleging defamation, unfair competition, violations of Lanham Act, Utah Truth in Advertising Act, etc. Judge Kimball dealt with various motions here, including sanctioning P&G for failing to preserve relevant emails, and allowed P&G to do a keyword search of Defendant’s database on issues concerning agency or control in general, but limited search so that it would not yield general commercial or competitive information.
• US v Koch Destruction of Evidence, Sanctions
  Detailed analysis and discussion of digital discovery issues and problems. Shareholders filed claim under False Claims Act, alleging that oil company understated quantity of oil produced from federal and Indian lands. Plaintiffs claimed that company thwarted discovery attempts by destroying backup tapes and files. Court found that Plaintiffs had failed to show that Defendant engaged in willful acts to thwart discovery, but the Defendant failed in its duty to preserve evidence that it should have known was relevant, and many files which should have been preserved were destroyed due to Defendant’s negligence. Court did not allow adverse inference instruction to jury, but did allow Plaintiffs to inform jury which tapes were destroyed and the impact of the destruction on their case.
• Spoliation: Analysis
  Excellent synopsis of spoliation written by CLE Teaching Fellow Matt Delmero. This article speaks clearly about the matter and its effects, both intentional and inadvertant, on evidence that is being submitted.

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