Case Law Database

Acknowledging and understanding the relevant North American case law is a core component of the Digital Records Forensics project. It is necessary to know how the courts have addressed matters of authenticity of evidence, expert witnesses, disclosure of documentation, privacy, and other related topics as they apply to digital records. This database offers abstracts of some of the most interesting and current cases addressing these issues. The database also includes statutory provisions and tribunal decisions. Readers should be aware that this database is not exhaustive and will be updated on a regular basis.

To access the database, click on the appropriate primary category and then select the sub-category of your choosing. The number in parentheses represents the number of cases currently in that area.

  • Canada
    • 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
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    • 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)
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    • 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)
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    • Case Name: Schreiber v. Canada (Attorney General)
    • Case Citation: [1998] 1 S.C.R. 841
    • Decision Date: May 1998
    • Court: Supreme Court of Canada
    • Link(s) to Case: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii828/1998canlii828.html
    • Abstract: The Attorney General of Canada sent a letter to the appropriate authorities in Switzerland requesting banking documents of the plaintiff to be searched and seized. The Swiss authorities agreed to carry out the request. Prior to submitting the request, the Attorney General of Canada did not obtain a search warrant. The plaintiff questioned if his section 8 rights of the Canadian Charter of Rights and Freedoms had been violated because the Canadian search warrant had not been executed first. At issue is if the plaintiff had a reasonable expectation of privacy with his Swiss banking records and whether the letter of request violated the respondent’s guarantee of security against unreasonable search and seizure contained in s. 8 of the Charter. The Federal Court Trial Division ruled that the search warrant should have been first issued and that the plaintiff had a reasonable expectation of privacy, but in a 5-2 ruling the Supreme Court argued that the plaintiff did not have a reasonable expectation of privacy with regards to his Swiss banking records and therefore could not claim a violation of his s. 8 Charter rights.
    • Keywords: bank account, Canadian Charter of Rights and Freedoms, foreign law, privacy, search and seizure, search warrant
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    • 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
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    • 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
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    • Case Name: R. v. Pommer
    • Case Citation: 2008 BCSC 423
    • Decision Date: April 2008
    • Court: British Columbia Supreme Court
    • Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc423/2008bcsc423.html
    • Abstract: Mr. Pommer and his wife separated in 2004 but continued to live together in the same house albeit different bedrooms. A couple months after their separation, the daughter found a camcorder in the bedroom she shared with her mother. Mr. Pommer’s wife immediately kicked Mr. Pommer out of the house. Upon leaving and the finalization of their divorce, Mr. Pommer “abandoned” a home computer at his ex-wife’s home. Fearful that inappropriate images of her and her daughter may have been dispersed online, Mr. Pommer’s ex-wife contacted the police, but stated she did not want to open a criminal investigation. Cst. Johnson conducted a warrantless search of the home computer and discovered several images that constituted child pornography. These images led Cst. Johnson to open a criminal investigation against Mr. Pommer. In 2005, Cst. Johnson received a search warrant to perform a forensic examination of the computer which was granted; upon its execution, additional illegal images were uncovered. This search led Cst. Johnson to gather more evidence against Mr. Pommer and, after two unsuccessful attempts, obtain a search warrant for his condominium and his office. At issue in this case is if the police breached Mr. Pommer’s section 8 Charter rights that protect him against illegal searches. Did Mr. Pommer have reasonable expectation of privacy in the home computer and its contents? In this voir dire, the Supreme Court argued he relinquished his expectation of privacy because in his process of moving out of the house, he returned twice but left the home computer and knew that the locks on the doors were going to be changed. In effect, he had given up access and control of that computer and lost his reasonable expectation of privacy. Furthermore, the defense counsel argued that how the search warrants were obtained and their contents was misleading in parts and the evidence obtained as a result of the warrantless search should not be admitted in court. After an extensive and meticulous review of Cst. Johnson’s actions, the Court held that he acted in good faith of and that the breach of Mr. Pommer’s s. 8 Charter rights amounted to a “technical violation” and the evidence could be admitted at trial.
    • Keywords: admissibility, Canadian Charter of Rights and Freedoms, electronically stored information (ESI), forensic analysis, privacy, search and seizure, voir dire
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    • Case Name: R. v. Penny
    • Case Citation: 2002 NFCA 15
    • Decision Date: March 2002
    • Court: Supreme Court of Newfoundland and Labrador Court of Appeal
    • Link(s) to Case: http://www.canlii.org/en/nl/nlca/doc/2002/2002nfca15/2002nfca15.html
    • Abstract: At issue is whether a videotape was admissible evidence given the credibility of the witnesses who proffered the evidence and the fact that the camera was frequently turned on and off by the operator during the taping process. The Provincial Court refused to admit the tape as evidence citing the lack of credible witnesses to attest its authenticity. The Supreme Court reversed the lower court’s decision saying the “accuracy, continuity, and integrity of those making the videotapes go to the weight to be given to such evidence and not to whether the evidence is to be admitted.” Upon appeal, the Court of Appeal cited the lack of credible witnesses and questioning the accuracy of the events represented in the videotape and ruled the videotape was not admissible as evidence.
    • Keywords: admissibility, witness credibility, authenticity, probative value, electronic information
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    • 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
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    • Case Name: R. v. Nikolovski
    • Case Citation: [1996] 3 S.C.R. 1197
    • Decision Date: December 1996
    • Court: Supreme Court of Canada
    • Link(s) to Case: http://www.canlii.org/en/ca/scc/doc/1996/1996canlii158/1996canlii158.html
    • Abstract: The defendant was accused of robbing a convenience store. While the store’s video camera caught and recorded the robbery, the store clerk could not positively identify accused. The trial judge, sitting alone, admitted the tape as evidence and convicted the accused based on what the tape depicted. The Court of Appeal overturned this decision, arguing that the conviction should not have been based solely on the videotape. The Supreme Court upheld the trial judge’s decision saying that the inability of the clerk to identify the accused was “not of great significance.” In a dissenting opinion, Justices Sponika and Major argued that the trial judge’s decision did not consider several other factors in conjuncture with the videotape, all of which did not support the initial judgment; they stated that the conviction “rests on a shaky foundation and is unsafe and unsatisfactory.”
    • Keywords: admissibility, identification, videotape, witness testimony
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    • 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
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    • 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
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    • Case Name: R. v. MacPherson
    • Case Citation: 2005 BCSC 381
    • Decision Date: May 2005
    • Court: British Columbia Supreme Court
    • Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2005/2005bcsc381/2005bcsc381.html
    • Abstract: In March 2003, the defendants, Michael MacPherson and Robert Onset were both arrested and charged with drug trafficking and weapon offenses. The Court found problems with the continuity of evidence, specifically, an analyst’s certificate identifying the substance purchased from the defendants. The problem arose when the exhibits officer of the case died in October 2005 and could not testify; the Crown presented no other means for establishing the chain of custody. The Court stated that while this break does not make the evidence automatically inadmissible (that is for the trier of fact to determine), it does reduce its weight. Furthermore, the Court cited R. v. Larsen (2001 aff’d on other grounds in 2003) which that “continuity of possession of the substance from the accused to the law enforcement officer to the analyst is crucial. However, Canadian case law makes it clear that proof of continuity is not a legal requirement and that gaps in continuity are not fatal to the Crown’s case unless they raise a reasonable doubt about the exhibit’s integrity.” The Court found Onset not guilty of both charges but MacPherson was found guilty of drug trafficking.
    • Keywords: chain of custody, proof of continuity, evidence, admissibility
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    • Case Name: R. v. MacNeil
    • Case Citation: 2008 QCCS 915
    • Decision Date: February 2008
    • Court: Quebec Superior Court
    • Link(s) to Case: http://www.canlii.org/en/qc/qccs/doc/2008/2008qccs915/2008qccs915.html
    • Abstract: The accused was charged with murder in the first degree. The victim had been shot to death in the early morning hours in front of a large shopping complex in Montreal. The shopping centre was equipped with a digital surveillance system and two of the cameras recorded the events leading up to and including the shooting. As evidence of the culprit’s identity, the crown sought to introduce copies of the recordings made by the cameras, and image prints and video clips also made from the recordings. The defence objected to the admissibility of the evidence arguing their original format had been altered and they were no longer accurate or reliable. During the copying process, the police lost the watermarkings from the tapes, but the judge ruled that the loss of this authenticating information was merely peripheral and did not alter or change the video images themselves. Most importantly, four witnesses authenticated the videotapes from having seen the shooting in person or from images of it. The judge admitted the evidence, leaving the question of weight for the jury to determine at the end of the trial.
    • Keywords: admissibility, electronically stored information (ESI), authenticity, reliability
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    • Case Name: R. v. Lam
    • Case Citation: 2008 BCPC 248
    • Decision Date: August 2008
    • Court: British Columbia Provincial Court
    • Link(s) to Case: http://www.canlii.org/en/qc/qccs/doc/2008/2008qccs915/2008qccs915.html
    • Abstract: At issue in this case is Section 490 of the Criminal Code that deals with seized property, specifically subsections (1) and (2). This is an application by the plaintiff argued that materials seized by the police should be transferred to the Registrar of the Provincial Court of British Columbia and that the two subsections in question granted the Provincial Court to make such an order. The Crown contested that the police were the ones best suited to retrain the materials, thereby avoiding, among other issues, chain of custody concerns. Upon examining the whole of s. 490, the Court could not find an expressed authority to order the Crown to transfer evidence to the Registrar.
    • Keywords: Criminal Code, chain of custody, trusted custodian, preservation of evidence
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    • Case Name: R. v. Gregoire
    • Case Citation: 2005 ABQB 57
    • Decision Date: January 2005
    • Court: Alberta Court of Queen's Bench
    • Link(s) to Case: http://www.canlii.org/en/ab/abqb/doc/2005/2005abqb57/2005abqb57.html
    • Abstract: This voire dire sought to determine if confessions made by the defendants were free and voluntary. The defendants were arrested and booked at the police station on drug-related charges and they each would confess to their actions. The Crown argued that the confessions were voluntarily, but the Court questioned a 60-minute period following the booking of the defendants that could not be accounted for by the police officers. This gap made it difficult for the Crown to overcome a reasonable doubt that the confessions were free and voluntary.
    • Keywords: admissibility, chain of custody, confessions, voluntariness
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    • 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)
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    • 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
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    • Case Name: R. v. Doughty
    • Case Citation: 2009 ABPC 8
    • Decision Date: January 2009
    • Court: Alberta Provincial Court
    • Link(s) to Case: http://www.canlii.org/en/ab/abpc/doc/2009/2009abpc8/2009abpc8.html
    • Abstract: The accused was charged on eight counts of theft and one count of assault with intent to resist arrest. At the trial, the Crown offered a CD allegedly containing images of the thefts. The images were downloaded and copied from the store’s surveillance cameras by the store’s loss prevention officer. The Crown called the store’s acting district manager of loss prevention to authenticate the CD but she lacked sufficient knowledge of the CD’s making to eliminate the possibility of distortion, or of the surveillance system in the store to establish that it was operating properly.  The judge held that the district manager failed to authenticate the CD and ruled it inadmissible.
    • Keywords: electronically stored information (ESI), expert witness, authentication, admissibility
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    • Case Name: R. v. Braudy
    • Case Citation: 2009 CanLII 2491
    • Decision Date: January 2009
    • Court: Superior Court of Justice
    • Link(s) to Case: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii2491/2009canlii2491.html
    • Abstract: The defendant accused of possessing child pornography. One of the primary issues in this case was if the Crown could prove that the child pornography found on the hard drives and CDs seized by police from the defendant’s spouse whom had moved out of his home but took the computers with her were in the defendant’s possession. Ms Braudy took the computers on the advice of her lawyer as their contents may be useful in providing information about job searches and parenting issues. She also believed that there might have been child pornography on them. At one point, the police seized the computers and obtained a search warrant to conduct a forensic examination of them. The defence counsel objected to the police officer who conducted the analysis arguing the was not a neutral party. While the judge conceded this point, he argued that the testimony was supported by “printouts confirming the information” the officer provided and there was no evidence refuting the testimony. In allowing the testimony of the expert witness the Court would find the defendant guilty of possessing child pornography.
    • Keywords: computer forensic, expert testimony
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    • Case Name: R. v. Bishop
    • Case Citation: 2007 ONCJ 441
    • Decision Date: April 2007
    • Court: Ontario Court of Justice
    • Link(s) to Case: http://www.canlii.org/en/on/oncj/doc/2007/2007oncj441/2007oncj441.html
    • Abstract: The accused was charged with two counts of being in possession of child pornography. At the time of the arrest, the police seized several compact discs and a computer system owned by the defendant. The defendant argued his section 8 rights of the Canadian Charter of Rights and Freedoms had been violated because the search warrant was overly broad and the police violated his privacy by not clarifying their search protocol which would have isolated the information they sought to seize to seize. Justice Clarke discusses the evolution of search warrants in the digital age and some of the problems that this type of information posses for privacy concerns, such as, “overseizure” (i.e., seizing “things beyond those justified by the grounds”), the identification of relevant information, and the value of copies versus the value of the originals may have on evidence. Based on his understanding that law enforcement may need to seize a computer system and additional peripheral devices (i.e., printers) for contextual and operational purposes, Justice Clarke did not believe the search warrant was overly broad. He also dismissed the arguments against invasion of privacy because the defendant, by his own actions that led to his arrest, nullified his right to privacy. Furthermore, the search warrant stipulated that a trained specialist in forensic examination would conduct the search, no software or hardware would be damaged, and “an officer would be present during the search to ensure that anything seized which was not child pornography would not be searched and would be returned to the applicant.”
    • Keywords: Canadian Charter of Rights and Freedoms, computers, electronically stored information (ESI), electronic evidence, privacy, search and seizure
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    • 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
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    • 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
    • ^ TOP ^
    • Case Name: R. v. Baxter
    • Case Citation: 2009 ONCJ 16
    • Decision Date: January 2009
    • Court: Ontario Court of Justice
    • Link(s) to Case: http://www.canlii.org/en/on/oncj/doc/2009/2009oncj16/2009oncj16.html
    • Abstract: The defendant was accused of distributing child pornography from his computer at work; he denied these accusations. The defendant argued that though his computer was used to distribute the pornography, it was not him and someone else did so from his computer. The Crown called a computer forensics expert to testify about the time stamps of the documents in question, the computer’s usage, and the Internet usage of the computer in question. At issue in this ruling is the expert’s qualifications and if the expert was biased against the defence. The defence argued that the expert lacked publications and lectures in the field, nor did he have a degree or diploma from a university or community college. Also, the defence believed the expert was biased in favour of the Crown because all the courses he took to obtain his computer forensic knowledge and certification were taught by police officers. Drawing on R. v. Marquard the Court noted that in the overall context of the case and subject matter, the education and publication record of the witness may not be the determining factor for the admissibility of the expert’s testimony, rather, these matters would go to weight. The Court also did not believe the expert would be biased against the defence since police officers commonly serve as expert witnesses. The Court dismissed the defence’s objections and allowed the witness.
    • Keywords: computer forensics, expert testimony
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • Case Name: Microsoft Corp. v. 9038-3746 Quebec Inc.
    • Case Citation: 2006 FC 1509
    • Decision Date: December 2006
    • Court: Federal Court (Montréal, Quebec)
    • Link(s) to Case: http://www.cacn.ca/PDF/Case%20Law/Decision%20Microsoft%20v%209038-3746%20Quebec%20Inc.PDF
    • Abstract: This case involves CDs and materials that the defendants possessed and which both parties agreed were counterfeit. The defendants, a Quebec business and Carmelo Cerrelli, argued they had a right to distribute the materials because they were genuine. In 1999, the RCMP executed a search warrant at the defendant’s business and seized various materials. For trial, the chain of custody of these materials was initially challenged because they were delivered by a representative of the KPMG. In order to establish the authenticity of the evidence, the plaintiff was prepared to call each person from the KPMG who handled the materials. The materials were admitted by affidavit. The court found that the defendants knowingly traded counterfeit items and issued statutory and punitive damages in the amounts of $500,000 and $200,000, respectively.
    • Keywords: copyright, CDs, intellectual property, evidence, computer software, chain of custody
    • ^ TOP ^
    • Case Name: McDougall v. Black & Decker Canada, Inc.
    • Case Citation: 2008 ABCA 353
    • Decision Date: October 2008
    • Court: Court of Appeal of Alberta
    • Link(s) to Case: http://www.canlii.org/en/ab/abca/doc/2008/2008abca353/2008abca353.html
    • Abstract: In January 2004, the plaintiffs lost their house to a fire and the fire department determined it resulted from either improperly secured smoking materials or a Black & Decker cordless electronic drill. The plaintiffs sued Black & Decker. The plaintiffs hired an insurance investigator to inspect the fire and he confiscated the drill. By the time the lawsuit began, the house had been raised and parts of the drill had gone missing. Black & Decker filed to have the suit dismissed on the basis of spoliation since they could properly investigate the fire scene or the drill. A chambers judge granted this motion but the plaintiffs appealed. The Court of Appeal overturned the chambers judge’s decision. Foremost, Black & Decker did not request the drill until 2006, over two years after the incident, nor did the company take advantage of being granted access to the fire scene as early as 2004. Furthermore, though Black & Decker said parts of the drill had gone missing, it was unclear which parts no longer existed and if their absence resulted from their intentional destruction. The Court of Appeal ruled that Black & Decker should be granted access to the plaintiff’s insurance investigator as well as any photographs he took of the fire scene and the drill. Following an examination of the available evidence, the court left issue of spoliation to be determined at trial.
    • Keywords: destruction of evidence, preservation of evidence, spoliation
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • Case Name: Catalyst Fund General Partner I Inc. v. Hollinger Inc.
    • Case Citation: 2005 CanLII 2309
    • Decision Date: January 2005
    • Court: Ontario Superior Court of Justice
    • Link(s) to Case: http://www.canlii.org/en/on/onsc/doc/2005/2005canlii2309/2005canlii2309.html
    • Abstract: In addition to criminal proceedings, civil litigation resulted from Conrad Black’s transactions.  In connection with the civil litigation, a major shareholder obtained the court appointment of an inspector under federal companies legislation, to examine the transactions of Hollinger Inc.  The inspector sought a court order appointing a firm to assist with forensic inquiry into Hollinger’s electronic records. The expert was hired to assist in processing electronic images and to lease certain software and hardware.  A shareholder objected to the cost and delay resulting from the terms of appointment of the forensic expert.  The judge noted that the objection came from a shareholder that was implicated in the alleged wrongdoings, and granted the order appointing the expert.
    • Keywords: electronically stored information (ESI), expert testimony, forensic analysis, cost, time
    • ^ TOP ^
    • Case Name: Browning Harvey v. NLAPPE Local 7003 and Persons Unknown
    • Case Citation: 2007 NLTD 10
    • Decision Date: January 2007
    • Court: Newfoundland and Labrador - Supreme Court of Newfoundland and Labrador, Trial Division
    • Link(s) to Case: http://www.canlii.org/en/nl/nlsctd/doc/2007/2007nltd10/2007nltd10.html
    • Abstract: At issue in this case was the admissibility of two videotapes allegedly depicting behviour of a picket line formed by the NLAPPE against the employer, Browning Harvey.  It was testified that the videotapes were created using a digital zoom camcorder as the events unfolding.  Following the videotaping, the recorder labeled and sealed the videotapes and turned them over to Browning Harvey’s “evidence handler.”  It was revealed that there was disparity between what was on one of the tapes and what was observed by the recorder, due to the editing of the tapes. The defence objected to the admissibility of the videotapes citing the lack of continuity of possession and for the discrepancies resulting from copying, manipulation, and editing.  The judge excluded the videotapes arguing that the employer failed to prove that the videotapes had not been tampered with.
    • Keywords: admissibility, electronically stored information (ESI), chain of evidence, authenticity, reliability
    • ^ TOP ^
    • 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
    • ^ TOP ^
  • USA
    • Case Name: United States v. Zerjav
    • Case Citation: 2009 U.S. Dist. LEXIS 60113 (E.D. Mo. July 14, 2009)
    • Decision Date: July 2009
    • Court: U.S. District Court, Eastern District of Missouri
    • Link(s) to Case:
    • Abstract: This is a motion by the plaintiff to compel the defendant to produce documentation. In its review of the 51 document requests, the Court ruled 35 of them as overly broad, while upholding the other 16. The Court offered no further elaborations for its decisions on the document requests. The Court addressed the issue of metadata as a separate matter, noting that the parties had come to some agreement on its production, but stated that “[w]hile the Parties may exchange metadata by agreement, the Court has no intention of requiring any party, in any case, to produce metadata without showing that other means of obtaining the discoverable material failed.”
    • Keywords: fishing expedition, metadata, tax records
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • Case Name: State v. Bellar
    • Case Citation: 231 Ore. App. 80; 217 P.3d 1094; 2009 Ore. App. LEXIS 1509
    • Decision Date: December 2009
    • Court: Court of Appeals of Oregon
    • Link(s) to Case: http://scholar.google.ca/scholar_case?case=2787501167929932164&hl=en&as_sdt=2&as_vis=1&oi=scholarr
    • Abstract: The defendant took his computer to a repair shop to have his computer fixed and files copied so they could be transferred to a new computer. The owner of the repair shop, Mr. Wells, opened a file he believed the defendant may not have wanted saved only to discover the file contained child pornography. Mr. Wells copied the files to a CD and notified his mother who worked for the local sheriff’s office. Two months later, he was contacted by a sheriff deputy to whom the CD was given. A search warrant was issued and the defendant arrested. The defendant argued that the child pornography was not his and placed on the computer by the previous owner. The defendant also contested the search warrant. The trial court upheld this position by stating that the warrant authorized the seizure of the defendant’s computer and other personal items but not the subsequent search or viewing of their contents. The trial court also granted the defendant’s supplemental motion to “suppress evidence obtained as a result of the police viewing the file contained on the CD provided to them by Wells but only to the extent that their search exceeded the scope of the private search by Wells.” The court of appeal disagreed with the trial and argued that the warrant did “authorize police to search for items without authorizing the seizure of any of the items.” In his dissenting opinion, Judge Sercombe argued that the defendant did not abandon his right to privacy by interacting with Mr. Wells and the police needed a warrant to search the CD Mr. Wells had made from the contents of the defendant’s hard drive.
    • Keywords: electronically stored information (ESI), Fourth Amendment, privacy, search and seizure, search warrant
    • ^ TOP ^
    • 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
    • ^ TOP ^
    • Case Name: State of Connecticut v. Alfred Swinton
    • Case Citation: 847 A.2d 921 (Conn. 2004)
    • Decision Date: May 2004
    • Court: Supreme Court of Connecticut
    • Link(s) to Case: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR268/268cr60.pdf
    • Abstract: The defendant was convicted of first degree murder but appealed on the grounds that some of the evidence introduced against him should not have been admitted. At issue was the reliability of photographic images, on which the defendant based his appeal. The images included an Adobe Photoshop superimposition of the defendant’s teeth over the bite mark and a set of computer-enhanced photographs. To test the merits of the defendant’s claim, the court used a six-point test for the authentication of computer-generated or enhanced evidence: 1) the computer equipment is accepted in the field as standard and competent and was in good working order; 2) qualified computer operators were employed; 3) proper procedures were followed in connection with the input and output of information; 4) a reliable software program was utilized; 5) the equipment was programmed and operated correctly; and 6) the exhibit is properly identified as the output in question. Based on its analysis, the Court ruled that the computer-enhanced photographs had been admitted on an adequate foundation (they were admitted by an experienced forensic-expert with knowledge of the creation procedure), but that the overlay images should not have been admitted because they were introduced by an forensic odontologist who did not create them nor was familiar with their creation process.
    • Keywords: authentication, admissibility, reliability, expert testimony, computer-generated evidence, digital photographs
    • ^ TOP ^
    • Case Name: Midkiff v. Commonwealth of Virginia
    • Case Citation: 54 Va. App. 323; 678 S.E.2d 287; 2009 Va. App. LEXIS 294
    • Decision Date: June 2009
    • Court: Court of Appeals of Virginia
    • Link(s) to Case: http://www.courts.state.va.us/opinions/opncavwp/2393073.pdf
    • Abstract: The plaintiff argued that the search warrant was “stale” and unreasonable. The trial court agreed with this position but allowed the seized evidence to be used in court because the officers that executed the warranted operated in good faith. At trial, the police entered into evidence twelve images from a CD that had been produced from a DVD that had been created from the plaintiff’s hard drive. The plaintiff argued, among other things, that the evidence should not be admitted because it violated the best evidence rule because the copies were not reliable. Relying on testimony from the forensic expert who copied the images from the hard drive to the DVD and the police officer who transferred the files from the DVD to the CD, the court ruled that the images from the CD were “fair and accurate representations of the digital files” from the plaintiff’s computer (the trial court did not admit four images to be admitted because they had been “combined” and did not appear as they did on the computer).
    • Keywords: admissibility, best evidence rule, electronically stored information (ESI), reliability, search and seizure
    • ^ TOP ^
    • Case Name: Lorraine v. Markel Insurance Company
    • Case Citation: 241 F.R.D. 534 (D. Md. 2007)
    • Decision Date: May 2007
    • Court: District Court of Maryland
    • Link(s) to Case: http://www.mdd.uscourts.gov/Opinions/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf
    • Abstract: This decision responds to an action that did not happen. The case involved a dispute over the ambiguous wording of an arbitration agreement. At issue was whether the arbitrator was authorized to declare an amount for damages in his/her ruling that lightening caused damage to a boat owned by the plaintiffs. In the parties’ attempt to settle, Judge Grimm could not make a ruling because both sides failed to present any authenticated evidence. Instead, the court ordered the parties to resubmit their motions “with proper evidentiary support.” Judge Grimm used the opportunity to provide one of the most comprehensive and detailed examinations of the admissibility and authentication of electronically stored information as it applies to all the pertinent rules of U.S. Federal Rules of Evidence, as well as a several rules from the U.S. Federal Rules of Civil Procedure.
    • Keywords: authentication, evidence, admissibility, electronically stored information (ESI), Federal Rules of Evidence (U.S.), Federal Rules of Civil Procedure (U.S.)
    • ^ TOP ^
    • Case Name: Griffin v. State
    • Case Citation: 2010 Md. App. LEXIS 87
    • Decision Date: May 2010
    • Court: Court of Special Appeals of Maryland
    • Link(s) to Case:
    • Abstract: In 2008, the plaintiff was convicted of, among other charges, second degree murder. In this motion, he appealed the jury’s decision, in part, on the grounds that the Circuit Court should not have admitted into evidence a page printed from MySpace because the State did not properly authenticate it. The anonymous page contained a picture of the plaintiff’s girlfriend and a threatening statement relevant to the testimony of a witness for the State. At issue is whether the State established the necessary foundation for determining the author of the statement. The Circuit Court admitted the page based on circumstantial evidence, namely the girlfriend’s picture, her date birth, references to her children, and the mentioning of the plaintiff’s nickname “Boozy.” Upon review, the Court of Special Appeals noted the dearth of precedent regarding the authentication of social media networking sites and provides an in-depth review of them, their content, and the legal challenges they pose. In drawing on Dickens v. State of Maryland (2007), where content and context established the necessary foundation for admitting electronic communications, the Court of Special Appeals upheld the lower court’s decision to admit the printed MySpace page based on circumstantial evidence.
    • Keywords: authentication, evidence, admissibility, electronically stored information (ESI), social networking sites
    • ^ TOP ^
    • Case Name: Frye v. United States
    • Case Citation: 293 F. 1013 (D.C. Cir. 1923)
    • Decision Date: December 1923
    • Court: Court of Appeals of District of Columbia
    • Link(s) to Case:
    • Abstract: Though overruled by the Daubert standard, this case continues to be referenced by the courts addressing expert testimony of scientists. This case specifically involved the result of a systolic blood pressure description test. The Court ruled that expert testimony when the scientific evidence, principle, or discovery has “gained general acceptance in the particular field in which it belongs.”
    • Keywords: authentication, evidence, expert testimony
    • ^ TOP ^
    • Case Name: Dickens v. State of Maryland
    • Case Citation: 175 Md. App. 231, 2007 Md. App. LEXIS 90
    • Decision Date: May 2007
    • Court: Court of Special Appeals of Maryland
    • Link(s) to Case:
    • Abstract: In 2005, a jury found the plaintiff guilty of charges including first-degree murder and the court sentenced him to life in prison. The plaintiff appealed this ruling, in part, on the grounds that the Circuit Court erred in admitted four text messages as evidence. He argued that the State did not properly authenticate the messages because they had not been directly linked to Mr. Dickens. The Court of Special Appeals rejected this contention. The State connected the messages to the plaintiff by direct and circumstantial evidence. The plaintiff’s phone number appeared in one text message (the direct evidence) and the specific references made in the other three messages could have only been made “by an exceedingly small number of persons[….]” The Court ruled that the contents and contexts of each message would provide sufficient evidence for a jury to infer that they came from Mr. Dickens’ phone, and thus the State laid the necessary foundation in proving all the messages came from the same person.
    • Keywords: authentication, evidence, admissibility, electronically stored information (ESI), text messages
    • ^ TOP ^
    • 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)
    • ^ TOP ^
    • Case Name: Daubert v. Merrell Dow Pharmaceuticals, Inc.
    • Case Citation: 509 U.S. 579 (1993)
    • Decision Date: June 1993
    • Court: United States Supreme Court
    • Link(s) to Case:
    • Abstract: Overruling the Frye standard, this case established a four-factor test for establishing a reliable foundation and the relevance of expert testimony of scientists; these factors include: (1) whether the evidence has been subjected to peer review, (2) whether the expert’s theories and methods can be tested, (3) the error rates in studies and test results, and (4) the degree of acceptance of the expert’s theories and methods.
    • Keywords: authentication, evidence, expert testimony, relevance
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    • 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
    • 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
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