Cases on Discovery and Disclosure
Canada
Case Name: R. v. Badgerow
Case Citation: 2008 CanLII 15895 (ON S.C.), 58 C.R. (6th) 367
Decision Date: April 2008
Court: Superior Court of Justice – Ontario
Link(s) to Case: http://www.canlii.org/en/on/onsc/doc/2008/2008canlii15895/2008canlii15895.html
Abstract: At issue in this case is the identification of the defendant who allegedly assaulted a woman in 1981. The initial case went unsolved but was reopened in 1998. Between the initial case and the reinvestigation, a substantial amount of evidence had been lost by the police department, including officer notebooks and photographs that would in the memory of witness testimony. Also, several of the original witnesses had since died or moved to unknown locations. Drawing from R. v. Stinchcombe and R. v. La, the Court ruled that the police department was at fault for the loss of evidence (the result of “an abuse of process”). The absence of the evidence “has caused actual and significant prejudice” to the defendant. The Court issued a stay of proceedings.
Keywords: preservation of evidence, duty to disclose, identification, witness testimony
Case Name: Adroit Resources Inc. v. Tres-Or Resources Ltd.
Case Citation: 2008 BCSC 1211
Decision Date: August 2008
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc1211/2008bcsc1211.html
Abstract: Between 2002 and 2004, these two parties, both mining companies, had several claims together, but in 2004, their relationship dissipated and litigation began. During the discovery process, the plaintiff requested e-mails and spreadsheets in their native format. The defendant countered by arguing that it had already produced 1,600 emails and producing any more would be an excessive burden to it given the resources needed to retrieve, review, and convert the messages to TIFF images so sensitive client information could be redacted. Tres-Or asserted that a large portion of the messages could not be retrieved in their native format because solicitor-client privilege would be jeopardized since it is not possible to redact metadata from the electronic documents. The judge made a split ruling saying that the defendant did not have to produce any additional e-mails but that the company needed to produce the spreadsheets in their native format.
Keywords: electronically stored information (ESI), discovery, native format, e-mails, metadata
Case Name: Honour v. Canada (Attorney General)
Case Citation: 2008 BCCA 346
Decision Date: August 2008
Court: British Columbia Court of Appeal
Link(s) to Case: http://www.canlii.org/en/bc/bcca/doc/2008/2008bcca346/2008bcca346.html
Abstract: In exceptional circumstances, a case management judge required a plaintiff to turn over a home computer to the defendants permitting them to take a mirror image of its hard drive, for their own forensic analysis. The plaintiff’s late spouse died in a helicopter crash, of which he was the pilot, and brought a fatal accident claim against the manufacturer of the helicopter, the manufacturers of the engine and fuel pump, the previous owner of the helicopter who also serviced it, and Transport Canada. In response, the plaintiff was required to produce the personal home computer that she and her late spouse used since it was used in connection with his work as a pilot. The plaintiff appealed this decision, but the judge dismissed the motion primarily because by allowing it, the scheduled trial would be unduly delayed.
Keywords: electronically stored information (ESI), forensic analysis, personal computers
Case Name: Dreco Energy Services Ltd. v. Wenzel
Case Citation: 2008 ABQB 489
Decision Date: August 2008
Court: Alberta Court of Queen’s Bench
Link(s) to Case: http://www.canlii.org/en/ab/abqb/doc/2008/2008abqb489/2008abqb489.html
Abstract: This opinion is part of a large corporate commercial and intellectual property law suit. At issue is the alleged destruction of electronic evidence by the defendants. The Court ordered a forensic expert to examine the computers and retrieve any lost or destroyed information. This process became an extremely contentious one, as both sides battled to determine which forensic expert should be used and which party should bear the costs. The Court argued that the Trial judge would be in the best position to determine responsibility for the lost computer records.
Keywords: destruction of evidence, electronically stored information (ESI), forensic analysis, costs, metadata
Case Name: Hamilton v. Jackson
Case Citation: 2009 BCSC 538
Decision Date: April 2009
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc538/2009bcsc538.html
Abstract: This is a child custody case where an e-mail was involved that explained an incident where the child was taken from the plaintiff because she was intoxicated. The plaintiff did not deny writing the message but did not recall writing the words that potentially put the child in danger; the plaintiff argued the defendant manipulated the e-mail. Neither party produced a copy of the e-mail (print or electronic) or offered any of its metadata as evidence; the Court remarks that any alterations of the message could have been detected by a forensic review.
Keywords: e-mail, metadata, forensic analysis, authentication
Case Name: Ireland v. Low
Case Citation: 2006 BCSC 393
Decision Date: March 2006
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc393/2006bcsc393.html
Abstract: This case involves the disclosure of private documentation on a home personal computer. The plaintiff claimed damages for injuries sustained in a motor vehicle accident which the defendant built and sold. The court ruled that the electronic data stored on a computer's hard drive falls within the definition of a “document” under the Rules of Court. The defendant argued that deleted information from the plaintiff’s computer could be retrieved by a computer expert but the Court denied the motion because privacy issues trumped discoverability and the cost would be exceedingly high to recover the deleted files.
Keywords: electronically stored information (ESI), discovery, deleted information, costs, metadata
Case Name: Vector Transportation Services Inc. v. Traffic Tech Inc.
Case Citation: 2008 CanLII 11050 (ONSC), 165 A.C.W.S. (3d) 803
Decision Date: March 2008
Court: Ontario Superior Court of Justice
Link(s) to Case: http://www.canlii.org/en/on/onsc/doc/2008/2008canlii11050/2008canlii11050.html
Abstract: In a case similar to Desganage v. Yuen, 2006 BCSC 955, this is an appeal by Traffic Tech and Cox from a master's decision ordering Cox to produce his personal laptop to a forensic data recovery expert who would inspect the computer for e-mails containing names of the plaintiff's clients or customers. The judge dismissed the appeal arguing that the master did take into consideration cost of retrieval and evidence to support relevancy and importance of information sought.
Keywords: electronically stored information (ESI), e-mail, forensic analysis, relevance, metadata
Case Name: Desgagne v. Yuen
Case Citation: 2006 BCSC 955
Decision Date: June 2006
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc955/2006bcsc955.html
Abstract: The plaintiff sought a wide variety of documentation from the defendant, including documents and e-mails from her personal computer as well as any computer games she may have owned and played. The Court rules that under the Rules of Court, metadata meets the definition of a document and is discoverable. The Justice Myers dismissed the request citing that the request was a fishing expedition. The files were being sought because they may have contained information assisting the defendant’s case, but Yuen did not provide sufficient evidence to prove their relevance. Also, Justice Myers declined the defendant’s request to access Desganage’s Palm Pilot and internet browser’s history because this would compromise her private interests and give unnecessary access to privileged information.
Keywords: e-mail, metadata, discovery, fishing expedition, privilege, relevance
Case Name: Innovative Health Group Inc. v. Calgary Health Region
Case Citation: 2008 ABCA 219
Decision Date: June 2008
Court: Alberta Court of Appeal
Link(s) to Case: http://www.canlii.org/en/ab/abca/doc/2008/2008abca219/2008abca219.html
Abstract: This case holds that a computer hard drive is the electronic equivalent of a filing cabinet, in the sense that it contains many records or documents, rather than consisting of a single record or document. The practical result under rules of court is that court will not ordinarily order the production of a hard drive in total, but rather will selectively order production of relevant and material files within the hard drive, and exclude others that are irrelevant, immaterial, private and confidential or privileged. The court also ruled that forensic searching is not necessary in every case but that the courts should have fair amount of discretion for determining when forensic analysis is appropriate.
Keywords: electronically stored information (ESI), confidential information, privileged information
Case Name: Spar Aeorospace Limited v. Aerowerks Engineering Inc.
Case Citation: 2007 ABQB 543
Decision Date: August 2007
Court: Court of Queen’s Bench of Alberta
Link(s) to Case: http://www.canlii.org/en/ab/abqb/doc/2007/2007abqb543/2007abqb543.html
Abstract: In this discovery case, Spar Aerospace Limited sought an extraordinary number of records in lieu of the execution of an Anton Pillar order. The defendants, Aerowerks Engineering Inc., did not adhere to the request. While the retrieval of all the appropriate documentation may have tipped the cost/benefit ratio that helps determine the extent to which documents may be discovered, because the parties involved were IT savvy, the judge determined that a balance in the ratio could be maintained. Additionally, some of the defendants’ e-mails indicated that not all the relevant ones were initially produced and the rest would need to be retrieved. The court ruled that, the defendants should make their best efforts to retrieve any relevant deleted records or list any relevant records that have been destroyed.
Keywords: Anton Piller order, discovery, electronically stored information (ESI)
Case Name: R. v. Beauchamp
Case Citation: 2008 CanLII 27481 (ON S.C.); 58 C.R. (6th) 177
Decision Date: April 2008
Court: Ontario Superior Court of Justice
Link(s) to Case: http://www.canlii.org/en/on/onsc/doc/2008/2008canlii27481/2008canlii27481.html
Abstract: The accused, several individual operating an alleged criminal organization, were charged with 33 different offences involving credit card forgery and fraud. Following a two year investigation, the police executed a search warrant and seized a number of computers and hard drives from the accused. While some of the information from these materials could be decrypted, approximately 19 megabytes of could not be. The Crown disclosed all the decrypted information but withheld that which it could not access on the basis of five arguments: 1) since the encrypted information is unknown it was not in its possession to turn over; 2) due to the uncertainty of the information, it was guarding against further criminal activity and guarding against individual privacy interests; 3) since it did not know what information it should disclose, the Crown could not disclose the information according to R. v. Stinchcombe; 4) Stinchcombe did not apply to this situation since that case did not deal with encrypted data; and 5) the Crown’s failure to disclose was justified on the basis of the “principles of fundamental justice.” The Court also observed that at least two of the defendents had the knowledge to access the encrypted information and they did not make a sufficient argument for demonstrating what particulars of the encrypted evidence they required and how it would be probative to their case. Justice R. Smith ruled that “providing a copy of the encrypted hard drives to defence counsel on their undertaking would not adequately address the principles of ensuring a fundamentally fair trial and maintaining to the integrity of the administration justice” (at [62]). If the defence presented the password or key necessary to access the information then the Court would make another ruling on the information in question, if necessary. The Court did not order the defence to reveal the password or key to the Crown since, according to Stinchcombe, the defence has no obligation to assist the Crown.
Keywords: disclosure, electronically stored information (ESI), encrypted data
Case Name: R. v. Bero
Case Citation: 2000 CanLII 16956 (ON C.A.), 151 CCC (3d) 545
Decision Date: November 2000
Court: Court of Appeal for Ontario
Link(s) to Case: http://www.canlii.org/en/on/onca/doc/2000/2000canlii16956/2000canlii16956.html
Abstract: In October 1996, the defendant was in a car accident with one other person. Hearsay evidence from the other party identified the defendant as the driver and a jury convicted him of impaired driving causing bodily harm and driving while intoxicated; he received a 30 month sentence. The defendant appealed his conviction. At issue in this case is the identity of the driver, a fact complicated by the police not preserving the vehicle in question. Following its investigation, the police confiscated the vehicle involved in the accident and sold it to an auto wrecker in December 1996, two months before the defendant was officially charged (he was recovering in a hospital). In March the following year, the car was destroyed. Counsel for the defense argued that since it could not examine the vehicle and conduct its own forensic examination to determine the identity of the driver, the police violated the defendant’s section 7 Charter rights. The Court of Appeal allowed the appeal primarily on the grounds that the defendant was prejudice at trial for not being allowed to voice the argument that the Crown failed to preserve evidence and allowed the defense to question witnesses as to why the evidence was not preserved and a more thorough forensic examination not conducted.
Keywords: Canadian Charter of Rights and Freedoms, destruction of evidence, forensic examination, preservation of evidence
Case Name: R. v. Egger
Case Citation: [1993] 2 S.C.R. 451
Decision Date: June 1993
Court: Supreme Court of Canada
Link(s) to Case: http://www.canlii.org/en/ca/scc/doc/1993/1993canlii98/1993canlii98.html
Abstract: In 1990, the defendant was involved in a car accident which was the result of him drinking and driving. At the hospital, two blood samples were taken, one for the police and one for independent analysis. The day before the trial, the defendant learned of the second sample. Due to the lack of proper notice, the trial judge did not allow the independent sample or witness testimony that would authenticate it to be admitted as evidence. The Trial Court acquitted the defendant but the Court of Appeal overruled this decision and ordered a new trial. One of the main issues in this case is what must the Crown disclose to the defendant and when it should be disclosed to ensure a fair trial. The Supreme Court ruled that both samples should have been disclosed to the defendant. Affirming the decision made in R. v. Stinchcombe, the Court said that because the Crown’s “failure to disclose impedes the ability of the accused to make full answer and defence.” The disclosure must be made “early enough to leave the accused adequate time to take any steps he or she is expected to take that affect or may affect” his or her s. 7 of the Canadian Charter of Rights and Freedoms rights. The Supreme Court upheld the Trial Court’s decision that acquitted the defendant.
Keywords: blood samples, Canadian Charter of Rights and Freedoms, disclosure
Case Name: R. v. Greer et al.
Case Citation: 2006 BCSC 1894
Decision Date: December 2006
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc1894/2006bcsc1894.html
Abstract: What obligations must the Crown meet in order to fulfill its duty to make reasonable disclosure? This case involved the accused being indicted on numerous counts, including forgery and stolen property. Following an extensive investigation, the Crown disclosed its documentation to the defendants in the form of a computer hard drive, which amounted to about 250,000 pages. The RCMP provided instructions for how to search the hard drive. Both of the defendants claimed they lacked the necessary computer skills and physical capacity to access the information. While the Crown is not obligated to provide a computer or the software, in this case, the Crown offered to make a computer available to the defendants to access the materials. The Court found that it was more to the defendants’ advantage than disadvantage if they used computers to access the information rather than having to sort through all the pages printed (which would be a costly and time consuming endeavor). In order to fulfill its obligation for disclosure in this case, Justice Powers stated that the Crown must provide training or assistance for accessing computer technology (including a help line if necessary); ensure the original documents could be available at reasonable times; present the hard drive with the data to the defence counsel and the accused; and offer the accused access to a computer.
Keywords: accessibility, disclosure, electronically stored information (ESI)
Case Name: R. v. Malik and Bagri
Case Citation: 2004 BCSC 554
Decision Date: April 2004
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2004/2004bcsc554/2004bcsc554.html
Abstract: This case is part of the Air India criminal investigation. The defendants argue their section 7 Charter rights had been violated with the destruction of Canadian Security Intelligence Service (CSIS) notes and audiotapes relating to the interviews of Crown witnesses. The Crown acknowledged that the tapes had been destroyed and all information the RCMP obtained from CSIS should have been disclosed under R. v. Stinchcombe, but rejected the claim that their destruction resulted from unacceptable negligence, as defined in R. v. La. The Crown denied this accusation arguing that the information obtained from interviewing the witnesses resulted from “intelligence gathering” not “evidence gathering.” The Court rejected this position saying the original notes and tapes would have been the best evidence and “of extreme importance and relevance” to the criminal investigation and proper procedures should have been in place to ensure their preservation. The Court ruled the destruction of the evidence as unacceptable negligence.
Keywords: Canadian Charter of Rights and Freedoms, destruction of evidence, preservation of evidence, unacceptable negligence, witness interviews
Case Name: R. v. McNeil
Case Citation: 2009 SCC 3
Decision Date: January 2009
Court: Supreme Court of Canada
Link(s) to Case: http://www.canlii.org/en/ca/scc/doc/2009/2009scc3/2009scc3.html
Abstract: Convicted on multiple drug charges, the accused learned, between his conviction and sentencing, that the arresting officer, whom was the Crown’s main witness was engaged in drug-related misconduct. The accused sought disclosure of all documents regarding the officer so he could introduce new evidence upon appeal. Before the appeal, the officer was convicted and the case against the defendant dismissed. While the production issue became moot, the Court ruled on the matter amicus curiae because of its frequent occurrence in court. Drawing on the two-part test for the disclosure of third-party records in R. v. O’Connor and reaffirming the Crown’s obligation to disclose all relevant information as outlined in R. v. Stinchombe, the Supreme Court ruled that, if proven relevant, the Crown must disclose police disciplinary records held by a third party.
Keywords: criminal law, disclosure, privacy, relevance, third-party records
Case Name: R. v. O’Connor
Case Citation: [1995] 4 S.C.R. 411
Decision Date: December 1995
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/ca/scc/doc/1995/1995canlii51/1995canlii51.html
Abstract: The accused was charged with a number of sexual offences. Defence counsel obtained a pre‑trial order requiring that the Crown disclose the complainants' entire medical, counselling and school records and that the complainants authorize production of such records. The case involves two issues: (1) when non‑disclosure by the Crown justifies an order that the proceedings be stayed and (2) the appropriate procedure to be followed when an accused seeks production of documents such as medical or therapeutic records that are in the hands of third parties and beyond the possession and control of the Crown. While the Court admonished the Crown’s actions during disclosure, these actions did not violate the accussed’s right to full answer and defence. The issue involved the disclosure of sexual assault counseling records held by third parties. Expanding on the Crown’s obligation to disclose all relevant documentation as ruled in R. v. Stinchcombe, the Court established a two-part test for ordering the disclosure of third-party records. First, the seeking party has to prove that records are “likely relevant.” If the records meet this low threshold of relevancy then the court must conduct a balancing of the third party’s privacy interest in the sought records with the accused’s interest in making full answer and defence. In borderline situations, the court ruled that that the judge should favour disclosure since disclosing records does not equate to their admissibility as evidence.
Keywords: criminal law, disclosure, evidence, medical records, third-party records
Case Name: R. v. Stinchcombe
Case Citation: [1991] 3 S.C.R. 326
Decision Date: November 1991
Court: Supreme Court of Canada
Link(s) to Case: http://www.canlii.org/en/ca/scc/doc/1991/1991canlii45/1991canlii45.html
Abstract: The defendant, a lawyer, was accused of breach of trust, theft and fraud. A witness interviewed by the Crown gave evidence which may have been favourable to the defence. The interview was tape-recorded and the Crown made the defence counsel aware of its existence but did not disclose it. The Trial ruled that the Crown was under no obligation to disclose the statements. The Trial court convicted the defendant; the Court of Appeal upheld the decision. At issue is whether the Crown was required to disclose the interview. In a unanimous decision, the Supreme Court ruled that the “Crown has a legal duty to disclose all relevant information to the defence… Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. ” The Court allowed the appeal and granted a new trial.
Keywords: disclosure, relevance
Case Name: R. v. Therrien
Case Citation: 2005 BCSC 592
Decision Date: April 2005
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2005/2005bcsc592/2005bcsc592.html
Abstract: At issue in this case is the format of the materials to be disclosed. The accused was charged with two counts of first degree murder. While the Crown disclosed all relevant information, it did so in both paper and electronic formats. The accused argued it could not access the ESI because his counsel lacked a computer, the necessary skills to access the information, and the ability to properly prepare it for court since it was not in hardcopy format. While Justice G.M. Barrow admitted that printing all the ESI may be a time consuming and expensive endeavor, he questioned if, in its electronic format, the material “reasonably accessible.” In response to the defendant’s position that he lacked the technology and skills required to access the ESI, the correctional facility offered to purchase and computer for his use and the Crown offered to provide instructional support to compensate for his lack of computer skills. As such, Justice G.M. Barrow argued that “given the minimal skill necessary to operate the software program employed by the police in this case, the limitations to which Mr. Benning points do not impair the accused’s ability to reasonably access the material. They do not impair the accused’s ability to make full answer and defence.”
Keywords: electronically stored information (ESI), format of disclosure
Case Name: Sourian v. Sporting Exchange Ltd.
Case Citation: 2005 CanLII 4938; 137 A.C.W.S. (3d) 712
Decision Date: March 2005
Court: Superior Court of Justice – Ontario
Link(s) to Case: http://www.canlii.org/en/on/onsc/doc/2005/2005canlii4938/2005canlii4938.html
Abstract: In this motion the plaintiff sought production of a report produced by a database operated by the defendant while the defendant sought production of the plaintiff’s computer. The plaintiff argued that it made a winning bet at 1000:1 odds using the defendant’s online betting service but the defendant invalidated the wager. At the centre of this dispute, but not a party of this motion, was Mr. Brian LeBlanc, a bookmaker and frequent user of the defendant’s services, who stood to lose over $200,000. The plaintiff sought a report generated from the defendant’s database that would account for all of Mr. LeBlanc’s previous betting history. Master McLeod likened the database to a filing cabinet or “digital warehouse” where its production is simply not the entire database and the software necessary to operate it but a specific list of certain fields of data within it; such information has to be produced in the usual course of business as a new document. In other words, in terms of disclosure, a “party must produce relevant documents but it is not normally required to create documents.” To determine if a new document should be generated, Master McLeod questioned if the new information was relevant and if the demand is “unusually onerous and abusive.” He concluded that the motion by the plaintiff did not have to be met because the defendant had already produced a report listing some of Mr. LeBlanc’s betting history. Furthermore, the plaintiff also sought the report to argue that the bet came from one of Mr. LeBlanc’s business computers. This is also the reason for the defendant’s motion for the plaintiff to disclose her home computer – to determine the bet’s origins. These positions became moot when, under court order to meet her discovery obligations, the plaintiff admitted making the bets using a computer owned by Mr. LeBlanc. Master MacLeod ruled that the defendant did not have to produce the report sought by the plaintiff and that a betting summary previously produced by the defendant was sufficient enough. This order did not preclude the plaintiff from future access to the evidence in the database if proven necessary.
Keywords: disclosure, discovery, electronically stored information (ESI)
USA
Case Name: Cenveo Corp., v. Southern Graphic Systems, et al.
Case Citation: 2009 WL 4042898 (D. Minn. Nov. 18, 2009)
Decision Date: November 2009
Court: Minnesota District Court
Link(s) to Case: http://www.electronicdiscoveryblog.com/cases/cenveo2.pdf
Link(s) to Case: http://www.iediscovery.com/files/Cenveo.pdf
Abstract: Defendants served the plaintiffs a motion to produce documents which defined documents as “electronically stored information in its native format,” but the defendants delivered the ESI in PDF format. The defendants argued that Rule 34 allowed it to produce the documentation in the form it is normally maintained or reasonably used if the format is not specified by the other party. But in this case, the defendants had stipulated the “native format,” a term the court considers as “unambiguous.”
Keywords: native format, electronically stored information (ESI), discovery
Case Name: State of Ohio v. Jose A. Rivas
Case Citation: 121 Ohio St.3d 469, 2009 Ohio 1354
Decision Date: March 2009
Court: Supreme Court of Ohio
Link(s) to Case: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1354.pdf
Abstract: The Second District Court of Appeals reversed the judgment convicting the defendant of importuning and attempted unlawful sexual conduct with a minor based on a trial court ruling denying him the opportunity to verify the accuracy of discovery provided by the state by allowing his expert to examine the state’s computer hard drive; the plaintiff appealed the decision. At issue is the court’s order to compel discovery of a confidential law enforcement investigatory record absent a showing of particularized need. The Supreme Court ruled that when a prosecutor has provided a written transcript that purports to accurately reflect data stored on a computer hard drive, a court may not order an examination of the computer hard drive unless the defense makes a prima facie showing that the state has provided false, incomplete, adulterated, or spoliated evidence. Because the defendant failed to meet this burden, the Court of Appeal’s decision was reversed.
Keywords: electronically stored information (ESI), spoliation, authentication, discovery
Case Name: The State of Washington v. Robert Corcoran Dingman
Case Citation: No. 34719-9-II consolidated with No. 35949-9-II
Decision Date: March 2010
Court: Court of Appeals of Washington, Division II
Link(s) to Case: http://caselaw.findlaw.com/wa-court-of-appeals/1158169.html
Abstract: The defendant was convicted of 16 counts of first-degree theft and 11 counts of money laundering. In this appeal, the defendant argues the trial court violated his discovery rights. In March 2003, police raided Dingman’s home, seized nine computer, and made mirror image copies of the hard drives using EnCase. Two years later, Dingman sought access to the image copies used by the State, so his own expert could examine the files. The State only granted access to an image of the hard drive after it had been used by EnCase and the trial court claimed this was sufficient. The court of appeals reversed the trial court’s decision stating that Dingman’s discovery rights had not been fulfilled, believing the State should have provided Dingman with the mirror image of the original hard drives so he could have his own forensic expert examine the computers.
Keywords: electronically stored information (ESI), discovery, forensic analysis
Case Name: The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al.
Case Citation: 05 Civ. 9016 (SAS), 2010 WL 184312 (D.N.Y. 2010)
Decision Date: September 2009
Court: New York District Court
Link(s) to Case: http://www1.nysd.uscourts.gov/cases/show.php?db=special&id=103
Abstract: Six years after New York (U.S.) District Judge Shira A. Scheindlin issued her seminal discovery rulings of Zubulake v. UBS Warburg, she returns to the subject of preservation of evidence and sanctions for failing to fulfill discovery orders. This case was initiated by the plaintiff (13 different parties in total) seeking to recover $550 million in lost investments from the defendants. During the discovery process, the defendants found substantial problems with the plaintiffs’ production. The plaintiffs sought sanctions in the form of case dismissal (the most severe form of sanctions). Though Scheindlin did not dismiss the case, she did issue 6 rulings of “gross negligence” and 7 rulings of just “negligence” (the former being a harsher form of sanctions than the latter) for their discovery efforts. The ruling may be noted more for its thorough analysis and discussion of a party’s duty to preserve information, litigation holds, and the different types and degrees of sanctions. The opinion demonstrates the continued importance of proper records management and the need for an organization’s legal counsel to discuss legal holds with records managers to facilitate the identification, preservation, and retrieval of relevant information.
Keywords: discovery, sanctions, duty to preserve, litigation hold
Case Name: David Lake v. City of Phoenix
Case Citation: No. CV-09-0036-PR
Decision Date: October 2009
Court: Arizona Supreme Court
Link(s) to Case: http://www.supreme.state.az.us/opin/pdf2009/CV090036PR.pdf
Abstract: In a unanimous decision, the Arizona Supreme Court argued that metadata as part of a public record in an electronic format is subject to disclosure under Arizona’s public records law. This decision overturned the Court of Appeal’s decision that argued the contrary.
Keywords: metadata, public records, Freedom of Information Act (FIOA)
Page last updated: July 10, 2010
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