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Practice Edge

edde case digest by steven teppler

32 – 2009-06-26

Melendez-Diaz decision takes blame for this week’s delay. Can’t think of better excuse. Lengthy digest.

Six decisions, including one from the U.S. Supreme Court appearing to extend the Sixth Amendment Confrontation Clause protection holding in Crawford v Washington. This decision may have significant implications for computer evidence used as “testimonial hearsay” evidence in future criminal actions. A second case from the District of Massachusetts provides what is in essence a minority view and in large part based older (here, two to three years older) notions of metadata repudiated by recent decisional authority as well as…the Sedona Principles. The third decision, finds the U.S. District Court for the District of New Jersey holding that the results of a forensic computer image analysis supported the issuance of a TRO. The fourth decision addresses the intersection of litigation and professional ethics…in this case, metadata mining by opposing counsel during litigation. Next up is decision from a California Appellate Court, affirming terminating sanctions for spoliation in the tens of millions of dollars (perhaps a near record amount) but reversing the trial court’s punitive damages ruling. The sixth
decision, from an appellate panel in New York, shows how spoliation can be alleged as a critical element for an assertion of fraudulent misrepresentation or fraudulent concealment (read: discovery abuse).

All errata acknowledged in advance.



Melendez-Diaz v. Massachusetts, --- S.Ct. ----, 2009 WL 1789468 (2009)

Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D.Mass. 2009)

Esquire Deposition Services, LLC v. Boutot, 2009 WL 1812411 (D.N.J. 2009)

Stengart v. Loving Care Agency, Inc., --- A.2d ----, 2009 WL 1811064
(N.J.Super.A.D. 2009)

Electronic Funds Solutions, LLC v. Murphy, 2009 WL 1717383 (Cal.App. 4 Dist. 2009)

IDT Corp. v. Morgan Stanley Dean Witter & Co., --- N.Y.S.2d ----, 2009 WL 1794364 (N.Y.A.D. 1 Dept. 2009)


Case: Melendez-Diaz v. Massachusetts
Citation: --- S.Ct. ----, 2009 WL 1789468 (2009)
Date: 2009-06-25
Topics: Extension of Crawford v Washington Confrontation Clause Protection to forensic analyst affidavits, core testimonial statements, breath-a-lyzer reference, implications for digital evidence, non-conventional witnesses, business record and official record hearsay exception and Confrontation Clause.

This decision from the U.S. Supreme Court addresses (and appears to expand) 6th Amendment Confrontation Clause rights. This decision (and the Crawford v Washington holding, discussed in detail below) may have important implications in the realm of computer generated evidence.

What was appealed: Following conviction in state trial court on charges of distributing and trafficking in cocaine, the Appeals Court of Massachusetts, affirmed, ruling that trial court had comported with Sixth Amendment by admitting certificates of analysis sworn by analysts at state laboratory without requiring in-court testimony by analysts. The Supreme Judicial Court
of Massachusetts denied review. Certiorari was granted. Note that the reports had to do with the (presumably chemical) testing of a sample of evidence suspected to be cocaine. Not a computer generated report, but, as discussed later in this digest, it appears that the Court is girding for that inevitability.

It is somewhat interesting to note that the U.S. appeared as amicus curiae in support of respondent.

First, the ruling. The Court (with Justice Scalia writing for the 5-4 majority) held:

“(1) analysts' certificates of analysis were affidavits within core class of testimonial statements covered by Confrontation Clause;

(2) analysts were not removed from coverage of Confrontation Clause on theory that they were not “accusatory” witnesses;

(3) analysts were not removed from coverage of Confrontation Clause on theory that they were not conventional witnesses;

(4) analysts were not removed from coverage of Confrontation Clause on theory that their testimony consisted of neutral, scientific testing;

(5) certificates of analysis were not removed from coverage of Confrontation Clause on theory that they were akin to official and business records; and

(6) defendant's ability to subpoena analysts did not obviate state's obligation to produce analysts for cross-examination.” Melendez-Diaz v. Massachusetts, ---U.S. ---, 2009 WL 1789468 (U.S. 2009)

Background Excerpted from the Syllabus:

“At petitioner's state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted.” Id., at 2009 WL 1789468 at p. 1

The Petitioner objected, asserting that the admission of the certificates without also providing an opportunity for defendant to obtain the in-person testimony of the analyst administering the test violated the 6th Amendment’s Confrontation Clause as interpreted by the Supreme Court’s 2004 decision in Crawford v Washington, 541 U.S. 36 (2004).

More details:

“Petitioner objected, asserting that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. The Massachusetts Appeals Court affirmed, rejecting petitioner's claim that the certificates' admission violated the Sixth Amendment. Id.

“Following conviction in state trial court on charges of distributing and trafficking in cocaine, the Appeals Court of Massachusetts, affirmed, ruling that trial court had comported with Sixth Amendment by admitting certificates of analysis sworn by analysts at state laboratory without requiring in-court testimony by analysts. The Supreme Judicial Court of Massachusetts denied review. Certiorari was granted.”

Crawford v Washington’s Analysis of Testimonial Hearsay and the 6th Amendment Confrontation Clause

The Crawford decision hold that testimonial hearsay is inadmissible at trial unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross examination. Id.

Examiner’s Certificates are “Core Testimonial Statements” Covered by
Confrontation Clause:

Key to the Court’s determination that examiner’s certificates (considered equivalent to affidavits) was that the certificates would be used as evidence at trial, and that under Massachusetts law, the certificate’s sole purpose was to provide prima facie evidence of composition, quality and net weight.” This evidence was clearly both testimonial and accusatory:

“The certificates here are affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause, id., at 51, 124 S.Ct. 1354. They asserted that the substance found in petitioner's possession was, as the prosecution claimed, cocaine of a certain weight-the precise testimony the analysts would be expected to provide if called at trial. Not only were the certificates made, as Crawford required for testimonial statements, “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” id., at 52, 124 S.Ct. 1354, but under the relevant Massachusetts law their sole purpose was to provide prima facie evidence of the substance's composition, quality, and net weight. Petitioner was entitled to “be confronted with” the persons giving this testimony at trial.
Id., at 54, 124 S.Ct. 1354.” Id.

Respondent’s Arguments:

“Certificates are Non-Accusatory” Argument Rejected

The Respondent (the State of Massachusetts) first argues that the examiner’s certificates are not “accusatory,” an assertion summarily rejected by the Court:

“The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent's claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment's text or in this Court's case law.” Id.


Contemporaneity of Statement Creation with Observation Not Irrelevant

On to the issue of contemporaneity, the next argument rejected by the majority. Here, the Court appears to indicate that, at least for Confrontation Clause purposes, contemporaneity of statement with observation does not alter that statement’s testimonial nature:

“The affiants' testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements' testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation.” Id.

Analyst “Certificates” are Not Business Records

The Court then determines that the certificates in questions do not qualify as traditional official or business records that could be considered admissible under Fed. R. Evid. Rule 803(6) --- [Reasoning to follow].

Neutral Scientific Testing

The Court also ruled that respondent’s argument that Confrontation Clause protection does not extend to the results from “neutral scientific testing” would “invite a return” to the decision overturned in 2004 by Crawford:

“The argument that the analysts should not be subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597, which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner's power to subpoena the analysts is no substitute for the right of confrontation.” Id.

Burdensomeness Argument Rejected

The Court also rejected respondent’s assertions that Confrontation Clause protections should in these cases be relaxed because of the added burden that would otherwise be shouldered by the state:

“Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution's task burdensome. In any event, the practice in many States already accords with today's decision, and the serious disruption predicted by respondent and the dissent has not materialized.” Id.

Here now, the longer analysis.

Justice Scalia, writing for the majority, states the issue in two sentences:

“The Massachusetts courts in this case admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. The question presented is whether those affidavits are “testimonial,” rendering the affiants “witnesses” subject to the defendant's right of confrontation under
the Sixth Amendment.” Id. at p. 2

Defendant-Appellant was charged with distributing and trafficking in cocaine in an amount between 14-28 grams. At trial, the prosecution placed into evidence three bags seized from defendant, and also submitted three“certificates of analysis” showing the results of forensic analysis performed on the seized substances. The certificates, which were sworn to before a notary, stated that the substance contained in the three bags was cocaine. Both the forensic examination conducted as well as the“certificates” issued were in accordance with Massachusetts state law.

At the state court drug trial, the prosecution introduced the certificates, which stated that the material seized by police and connected to petitioner was cocaine “of a certain quantity.” Moreover, as required by Massachusetts state law, the certificates were sworn to by a notary public, and were then introduced as prima facie evidence of what they asserted.

Petitioner objected, and asserted that Crawford v Washington 541 U.S. 36 (2004) required the analysts to testify in person. The trial court disagreed, and admitted the certificates. The jury found petitioner guilty. The Massachusetts Appeals Court affirmed the verdict, holding that state decisional authority (here vintage 2005) held that certificates of forensic analysis are not subject to confrontation under the Sixth Amendment. The Supreme Judicial Court of Massachusetts denied review, and the denial was then appealed by way of certiorari to the U.S. Supreme Court.

A brief trip down memory lane for those attorneys (non-attorneys get a pass here) who texted through constitutional law. The Sixth Amendment was made applicable to the States by application of the Fourteenth Amendment in 1965 and so the Court notes:

“The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Id. at p. 3

Crawford v. Washington

The Court then provides a brief summary of the holding in Crawford v Washington. In reversing the 1980 precedent set in Ohio v. Roberts 448 U.S. 56 (1980):

In Crawford, after reviewing the Clause's historical underpinnings, we held that it guarantees a defendant's right to confront those “who ‘bear testimony’ ” against him. 541 U.S., at 51, 124 S.Ct. 1354. A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54, 124 S.Ct. 1354.” Id.

Where the Crawford decision becomes interesting is in its general description of the “class of testimonial statements” and particularly articulation of “core class of testimonial statements” covered by the Confrontation Clause:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51-52, 124 S.Ct. 1354 (internal quotation marks and citations omitted).” Id.

The Court has no trouble in categorizing the “certificates” at issue as“core testimonial statements,” noting that:

“There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. Our description of that category mentions affidavits twice. See also White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (THOMAS, J., concurring in part and concurring in judgment) (“[T]he Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”). The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Black's Law Dictionary 62 (8th ed.2004). They are incontrovertibly a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford, supra, at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)).” Id.

The Court then determines that the “certificates” are “functionally identical” to live, in-court testimony, doing precisely what a witness does on direct examination.” The strong language used to describe the nature of these documents is notable for the use of “identical” rather than“equivalent:”

“The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine-the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.” Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)” Id.

The Court also points out that not only was there a reasonable expectation that the certificates would be used as evidence at trial, but that this was the sole purpose for their creation under Massachusetts law:

“Here, moreover, not only were the affidavits “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” Crawford, supra, at 52, 124 S.Ct. 1354, but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance, Mass. Gen. Laws, ch. 111, §13. We can safely assume that the analysts were aware of the affidavits'evidentiary purpose, since that purpose-as stated in the relevant state-law provision-was reprinted on the affidavits themselves.” Id. at p. 4

Author’s Note: Let’s pause for a moment and consider the results (a printout) of a breath alcohol measurement device (“Breath-a-lyzer”). The physical evidentiary sample is never preserved, and so the only evidence of blood alcohol level comes from a report, or printout, of the Breath-a-lyzer. Here, we have an “analyst in a box” and a black box at that. The laws of many states routinely provide that the printout of these devices may routinely introduced, and admitted, as evidence of the blood alcohol level of a defendant. Consider also that there is no human analyst involved in the process, merely a test “administrator” (typically a law enforcement officer) who does not analyze the evidence so much as report the results of the printout. Who accuses, in this scenario? The answer to this question is not at all clear, and presents that twilight area where digital evidence and hearsay definitions meet, or collide. More later.

Now, back to the decision.

The Court then quite succinctly sums up its rather lengthy holding in Crawford:

“In short, under our decision in Crawford the analysts' affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’ ” the analysts at trial. Crawford, supra, at 54, 124 S.Ct. 1354. FN1” Id. at 4

Confrontation Clause Requires “Live” Testimony

As always, footnotes to decisions like these provide ample additional context, and this decision has more than a few. We start off with footnote 1 (what else?), in which the Court responds to the dissent’s argument that the instant decision opens the Confrontation Clause floodgates to “anyone whose testimony may be relevant” in the proceedings, and that any gaps in the chain of custody normally go to weight, rather than admissibility:

“FN1. Contrary to the dissent's suggestion, post, at ---- - ----, ---- (opinion of KENNEDY, J.), we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. While the dissent is correct that “[i]t is the obligation of the prosecution to establish the chain of custody,” post, at ----, this does not mean that everyone who laid hands on the evidence must be called. As stated in the dissent's own quotation, ibid., from United States v. Lott, 854 F.2d 244, 250 (C.A.7 1988), “gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.” It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”

Author’s Note: The last sentence of this footnote has special meaning for those with an interest in digital evidence issues. Contrary to those who might argue otherwise, documents prepared in the regular course of maintenance are not the documents (or records) produced by a computing device (such as a Breath-a-lyzer) used to provide evidence of blood-alcohol level used in turn as evidence of an element of a crime. Moreover, documents prepared in the regular course of “equipment maintenance” almost certainly do not include uncompiled source code, even if such source code is changed, or “updated” through a maintenance procedure.

The Court Quells the Dissent’s Opening Alarum

The Court then refutes the dissent’s concern that the instant decision sweeps away nearly a century’s judicial approach to the rules governing the admissibility of scientific evidence. The Court first points out that this “acceptance” is merely thirty years old, and, that nearly all of these decisions rely on the very decision (Ohio v Roberts) and rationale that the Crawford decision rejected.

The rejected theory? That evidence was admissible as long as it bore some“indicia of reliability.”

“The vast majority of the state-court cases the dissent cites in support of this claim come not from the last 90 years, but from the last 30, and not surprisingly nearly all of them rely on our decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), or its since-rejected theory that unconfronted testimony was admissible as long as it bore indicia of reliability, id., at 66, 100 S.Ct. 2531. See post, at ----.FN2 As for the six Federal Courts of Appeals cases cited by the dissent, five of them postdated and expressly relied on Roberts. See post, at ---- - ----. The sixth predated Roberts but relied entirely on the same erroneous theory. See Kay v. United States, 255 F.2d 476, 480-481 (C.A.4 1958) (rejecting confrontation clause challenge “where there is reasonable necessity for [the evidence] and where ... the evidence has those qualities of reliability and trustworthiness”).” Id.

Author’s Note: Here, the issue is not so much that the Court rejects reliability as the touchstone for admissibility of scientific evidence, but that a mere “indicia” of reliability or trustworthiness is not enough.

Consider again the implications for computer generated information offered or introduced into evidence as a proxy for live testimony.

Back again to the decision.

Forensics Analysts are “Accusatory Witnesses”

The Court then addresses, and then rejects, respondent’s arguments that the analysts are not subject to confrontation because they are not “accusatory witnesses,” and do not “directly accuse” petitioner of wrongdoing:

“Respondent first argues that the analysts are not subject to confrontation because they are not “accusatory” witnesses, in that they do not directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence linking petitioner to the contraband. See Brief for Respondent 10. This finds no support in the text of the Sixth Amendment or in our case law.” Id. at p. 5.

One Fact Necessary to Convict Triggers Status as Accusatory Witness

The Court then determines that the status of “accusatory witness” attaches (thereby triggering confrontation rights) where a witness provides at least “one fact” necessary to convict. The Court also provides an interesting syllogism (which may be useful in digital evidence admissibility arguments), rejecting the (imo) oxymoronic notion that there is no category of witness testimony that may be considered helpful to the prosecution, but immune from confrontation:

“The Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him.” (Emphasis added.) To the extent the analysts were witnesses (a question resolved above), they certainly provided testimony against petitioner, proving one fact necessary for his conviction-that the substance he possessed was cocaine. The contrast between the text of the Confrontation Clause and the text of the adjacent Compulsory Process Clause confirms this analysis. While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses “against him,” the Compulsory Process Clause guarantees a defendant the right to call witnesses “in his favor.” U.S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses-those against the defendant and those in his favor. The prosecution must produce the former; FN3 the defendant may call the latter.” Id.

“Contrary to respondent's assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.” Id.

“Non-Typical Witnesses,” The Paradigmatic Trial of Sir Walter Raleigh, and Core Right of Confrontation

It’s not often that we see Blackstone’s Commentaries cited in a judicial decision, but then, this is no ordinary opinion. Indeed, the Court first points out that the dissent argues that analysts should not be subject to confrontation because they are not “’conventional” (or ‘typical’ or ‘ordinary’) witnesses whose ex parte testimony was used at the trial of Sir Walter Raleigh. The Court notes that the case of Sir Walter Raleigh identifies the “core” of the confrontation right rather than defining its

“Respondent and the dissent argue that the analysts should not be subject to confrontation because they are not “conventional” (or “typical” or “ordinary”) witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh. Post, at ---- - ----;Brief for Respondent 28. It is true, as the Court recognized in Crawford, that ex parte examinations of the sort used at Raleigh's trial have “long been thought a paradigmatic confrontation violation.” 541 U.S., at 52, 124S.Ct. 1354. But the paradigmatic case identifies the core of the right to confrontation, not its limits. The right to confrontation was not invented in response to the use of the ex parte examinations in Raleigh's Case, 2 How. St. Tr. 1 (1603). That use provoked such an outcry precisely because it flouted the deeply rooted common-law tradition “of live testimony in court subject to adversarial testing.” Crawford, supra, at 43, 124 S.Ct. 1354 (citing 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768)). See also Crawford, supra, at 43-47, 124 S.Ct. 1354.” Id. at p. 6

Non-Typical Witness - Testimonial Contemporaneity

The Court then rejects the dissent’s arguments that a conventional witness recalls events observed in the past, while an analyst’s report contains near-contemporaneous observations of the test. The Court discounts the importance of contemporaneity, finding that even near-contemporaneous witness statements were inadmissible absent an opportunity to confront:

In any case, the purported distinctions respondent and the dissent identify between this case and Sir Walter Raleigh's “conventional” accusers do not survive scrutiny. The dissent first contends that a “conventional witness recalls events observed in the past, while an analyst's report contains near-contemporaneous observations of the test.” Post, at ---- - ----. It is doubtful that the analyst's reports in this case could be characterized as reporting “near-contemporaneous observations”; the affidavits were completed almost a week after the tests were performed. See App. to Pet. for Cert.

24a-29a (the tests were performed on November 28, 2001, and the affidavits sworn on December 4, 2001). But regardless, the dissent misunderstands the role that “near-contemporaneity” has played in our case law. The dissent notes that that factor was given “substantial weight” in Davis, post, at----, but in fact that decision disproves the dissent's position. There the Court considered the admissibility of statements made to police officers responding to a report of a domestic disturbance. By the time officers arrived the assault had ended, but the victim's statements-written and oral-were sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a “present sense impression.” Davis, 547 U.S., at 820, 126 S.Ct. 2266 (internal quotation marks omitted). Though the witness's statements in Davis were “near-contemporaneous” to the events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the witness. Id., at 830, 126 S.Ct. 2266.” Id.

Author’s Note: A Breath-a-lyzer appliance report, if considered testimonial, would appear to fall into the “near contemporaneous” witness category.

Non-Conventional Witnesses - Non-Observants to Crime or Human Actions Related To It.

The dissent argued that the analysts issuing the certificates were not “conventional” witnesses because they neither observed the crime, “nor any action related to it.” The Court again summarily rejects this argument on the basis that the assertion is unsupported by any authority:

“A second reason the dissent contends that the analysts are not “conventional witnesses” (and thus not subject to confrontation) is that they “observe[d] neither the crime nor any human action related to it.” Post, at ----. The dissent provides no authority for this particular limitation of the type of witnesses subject to confrontation. Nor is it conceivable that all witnesses who fit this description would be outside the scope of the Confrontation Clause. For example, is a police officer's investigative report describing the crime scene admissible absent an opportunity to examine the officer? The dissent's novel exception from coverage of the Confrontation Clause would exempt all expert witnesses-a hardly “unconventional” class of witnesses.” Id.

Author’s Note: Computing appliances (such as a Breath-a-lyzer) neither “observe” crimes nor any action related to them. Imo the Court’s summary rejection of this argument lays a foundation for the future assertion that a computing appliance such as a Breath-a-lyzer might still be considered an accusatorial testimony generating witness.

Non-conventional Witnesses and Statement Not Provided in Response to Interrogation

The Court then rejects the dissent’s contention that analysts are not “conventional” witnesses because their statements were “not provided in response to interrogation.” The Court finds that a witness against a defendant is no less so for volunteering testimony than s/he is for responding to interrogation:

A third respect in which the dissent asserts that the analysts are not “conventional” witnesses and thus not subject to confrontation is that their statements were not provided in response to interrogation. Ibid. See also Brief for Respondent 29. As we have explained, “[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” Davis, supra, at 822-823, n. 1, 126 S.Ct. 2266. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a “‘witness against’ the defendant,” Brief for Respondent 26, than one who is responding to
interrogation.” Id., at p. 7

Author’s Note: You guessed it. Bladerunner type Replicants notwithstanding, computing appliances volunteer information (or testimony, if considered witnesses) rather than “respond to interrogation.” [Please, please don’t reboot me…J]

Testimony Recounting Historical Events, Testimony Resulting from Neutral Scientific Testing, and Footnote 5

The dissent then argues that Confrontation Clause application will vary with the specie of testimony. The dissent then attempts to draw a distinction between, on the one hand, a situation where the Confrontation Clause will apply (testimony recounting historical events, which is “’prone to distortion or manipulation’” and, on the other hand, testimony that is the “’result of neutral, scientific testing.”

The Court rejects this argument, again finding it to be “little more” than an invitation to reverse Crawford and return to Ohio v Roberts:

“This argument is little more than an invitation to return to our overruled decision in Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597, which held that evidence with “particularized guarantees of trustworthiness” was admissible notwithstanding the Confrontation Clause. Id., at 66, 100 S.Ct. 2531.” Id.

Author’s Note: The result of neutral, scientific testing may also, within the context of computer generated information, be prone to distortion or manipulation.

Confrontation Clause Ultimate Goal – Testable Reliability in the Crucible of Cross Examination

The Court finds that the Confrontation Clause’s goal is to ensure evidentiary reliability, but that the guarantee is procedural rather than substantive. Moreover, from a procedural context, the Confrontation Clause requires not only reliability, but some way to assess, or test that reliability:

““To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. ... Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.

This is not what the Sixth Amendment prescribes.” 541 U.S., at 61-62, 124S.Ct. 1354.” Id.

Footnote Five – The Breath-a-lzyer Reference

Footnote five provides a tantalizing hint, and perhaps only a hint, that the Court might entertain a Confrontation Clause appeal in connection with the reports (not maintenance reports) created by Breath-a-lyzer appliances. That future decision will be interesting, as the report of the breath-a-lyzer itself will need to be deemed some type of hearsay as a predicate for any Confrontation Clause analysis:

“Respondent and the dissent may be right that there are other ways-and in some cases better ways-to challenge or verify the results of a forensic test.FN5 But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.” Id., at p. 8

“FN5. Though surely not always. Some forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the specimens used for other analyses have often been lost or degraded.” Id.

Nor does the Court blithely accept “neutral scientific testing” to be reliable as on its face. In fact…

“Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6-1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists
often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S-17. A forensic analyst responding to a request from a law enforcement official may feel pressure-or have an incentive-to alter the evidence in a manner favorable to the prosecution.” Id.

The Court’s reasoning is deceptively simple:

“Confrontation is one means of assuring accurate forensic analysis.” Id.

The reason for the seeming simplicity of this comment is that the Court then discusses how a “fraudulent analyst” may alter his or her testimony when “forced to confront” the defendant. Moreover, the Court notes, an analyst
who provides false results may reconsider or recant testimony when under oath in open court:

Author’s Note: The implication for computer generated evidence are significant. Examination of source code may be the only way in which computer generated evidence used to prove “even one fact” of a crime may be cross examined. Moreover, the phrase “erroneous convictions based on discredited forensics” may well be read to mean “erroneous convictions based on discredited source code.” Both forensics reports and computer source code speak, and both accuse. Imo, the only difference is that the “speaker” of computer output is source code (or the programmer who created the
language spoken by the computing device).

“Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, post, at ----, the same cannot be said of the fraudulent analyst. See Brief for National Innocence Network as Amicus Curiae 15-17 (discussing cases of documented “drylabbing”
where forensic analysts report results of tests that were never performed); National Academy Report 1-8 to 1-10 (discussing documented cases of fraud and error involving the use of forensic evidence). Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U.S. 1012, 1019, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.” Id.

“Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.”
Metzger, Cheating the Constitution, 59 Vand. L.Rev. 475, 491 (2006). “ Id.

Usefulness of Testing Analysts Honesty, Proficiency and Methodology

The Court then endorses the application of confrontation rights to include analysts, as a means of testing (italics mine) honesty, proficiency and methodology:

“[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.” National Academy Report S-5. See also id., at 5-9, 5-12, 5-17, 5-21 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis). Contrary to respondent's and the dissent's suggestion, there is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology-the features that are commonly the focus in the cross-examination of experts.”Id., at p. 9

Business Record Exception Inapplicable Where Regular Course of Business isProduction of Evidence for Use at Trial

The Court then addresses respondent’s argument that the analysts’certificates are admissible “without confrontation” because they are the types of official and business records admissible at common law. The Court finds that the certificates do not qualify as tradition official or business records, and even if they did, their authors would be subject to confrontation. The Court provides some context by way of Fed. R. Evid. Rule 803(6) “regular course of business” exception to the hearsay rule, but notes that the exception does not apply where the regularly conducted business is the generation of evidence of for use at trial:

Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad's operations, it was “calculated for use essentially in the court, not in the business.” Id., at 114, 63 S.Ct. 477.FN7.” Id. at p. 10

For those hearsay aficionados among us, Footnote 7 provides some historical context for the “regularly conducted activity” exception:

“FN7. The early common-law cases likewise involve records prepared for the administration of an entity's affairs, and not for use in litigation. See, e.g., King v. Rhodes, 1 Leach 24, 168 Eng. Rep. 115 (1742) (admitting into evidence ship's muster-book); King v. Martin, 2 Camp. 100, 101, 170 Eng. Rep. 1094, 1095 (1809) (vestry book); King v. Aickles, 1 Leach 390, 391-392, 168 Eng. Rep. 297, 298 (1785) (prison logbook).” Id.

Author’s Note: Ok, I’m a bit confused. The Court refers to the Federal Rules of Evidence here, but as this is an appeal of a state court proceeding, shouldn’t the Massachusetts evidence rules be cited?

The Court gives equally short shrift to the argument that the analyst certificate qualifies as an “official record” pursuant to Fed. R. Evid. Rule 803(8). Especially interesting is the Court’s observation that the functions of a clerk typically are to “authenticate” rather than “create” a record which might be used as evidence against a defendant:

“The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk's certificate authenticating an official record-or a copy thereof-for use as evidence. See post, at ----. But a clerk's authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” State v. Wilson, 141 La. 404, 409, 75 So. 95, 97 (1917). See also State v. Champion, 116 N.C. 987, 21 S.E. 700, 700-701 (1895); 5 J. Wigmore, Evidence § 1678 (3d
ed.1940). The dissent suggests that the fact that this exception was “‘narrowly circumscribed’ ” makes no difference. See post, at ----. To the contrary, it makes all the difference in the world. It shows that even the line of cases establishing the one narrow exception the dissent has been able to identify simultaneously vindicates the general rule applicable to the present case. A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant.” Id.

Relationship between Business/Official Records Hearsay Exception and Confrontation Clause

The Court points out that respondent “misunderstands” the relationship between the business records and official records exception to the hearsay rule, and the Confrontation Clause. The operative distinction is not the nature of the records (business or official) but the purpose for which such business or official records are created. In other words, if such business or official records are generated for the purpose of generating evidence for use or establishing a fact at trial, they are testimonial and confrontation rights attach:

“Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records or statements in furtherance of a conspiracy.” 541 U.S., at 56, 124
S.Ct. 1354. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial. Whether or not they qualify as business or
official records, the analysts' statements here-prepared specifically for use at petitioner's trial-were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.” Id., at p. 11

Author’s Note: This decision, considered alongside Crawford v. Washington, provides a framework for the reconsideration of admissibility of digital evidence based not upon reliability, as the Court notes, but on the
principle of testability. In other words, naked assertions will not be acceptable. If one makes assertion (i.e., of reliability or trustworthiness) that assertion must be testable, rather than merely asserted. The implications for digital evidence admissibility are significant, but as yet, remain inchoate.


Case: Dahl v. Bain Capital Partners, LLC
Citation: 2009 WL 1748526 (D.Mass. 2009)
Date: 2009-06-22
Topics: Caution in use of metadata, reliance on Sedona’s repudiated position that most metadata is without value.

This decision from the U.S. District Court for the District of Massachusetts presents issues illustrating problems (1) faced by clients with counsel that is/are not quite up to speed on eDiscovery and digital evidence management practice, (2) faced by counsel when dealing with Courts that rely on decisional authority in a practice area which experiences the supercession
of even relatively recent vintage (2005) doctrinal authority.

This shareholder’s derivative action pits approximately one dozen law firms (plaintiffs’ side) against approximately 20 defendant side firms. It appears that even with the might of 12 firms, plaintiffs’ were hopelessly outmaneuvered in this eDiscovery hearing.


Playing “Telephone” with Metadata’s Value in Litigation

Yes, it’s true. I’m resorting to the children’s game of “telephone” to illustrate how the approach to metadata was transmogrified into something it was not meant to become.

The Court here first pronounces that “case law shows wariness about metadata’s value” and then relies on Wyeth v Impax Labs, 248 F.R.D. 169, 171 (D. Del. 2006) which in turn relies on Williams v Sprint/United Mgmt. Co., 230 F.R.D. 650, 651 (D. Kan. 2005), which in turn relies on...you guessed it…Sedona’s now repudiated position on the value of metadata.

Let’s parse the references. The first, to Wyeth, finds the Court locating an excerpt that appears to fit the “metadata has little value” proposition:

“Most metadata is of limited evidentiary value, and reviewing it can waste litigation resources.” Williams v Sprint, 230 F.R.D. 640 at 651 (D. Kan. 2005).

Fair enough. That’s the proper excerpt.

Let’s now look at the cite to Williams v Sprint, 230 F.R.D. 640 at 651 (D.
Kan. 2005):

The comment balances these potential benefits against the “reality that most of the metadata has no evidentiary value, and any time (and money) spent reviewing it is a waste of resources.” FN65 The comment concludes that a reasonable balance is that, unless the producing party is aware or should be reasonably aware that particular metadata is relevant, the producing party
should have the option of producing all, some, or none of the metadata.” Williams v. Sprint/United Management Co., 230 F.R.D. 640, 651 (D.Kan. 2005)

From whence comes this comment, one might inquire? Why, the Sedona Principles, vintage 2005. Footnote 65 tells all:

The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery, Cmt. 12.a. (The Sedona Conference Working Group Series, July 2005 Version), available generally at http://www.thesedo naconference.org, and more specifically at available at http://www.thesedon aconference.org/ content/miscFiles/7 05TSP.pdf.

Of course, the Sedona Principles were modified in 2008 to include a wellnigh total positional reversal on metadata value. This reversal in positionhas been acknowledged by many district courts, and in late 2008, the Aguilar v DHC decision from the Southern District of New York expressly noted Sedona’s positional reversal, and repudiated any decisional authority based on Sedona’s pre-2008 position.

Some Metadata Ordered to Be Produced

Plaintiffs requested all metadata in connection with the “email and word [sic] documents produced.” Defendants offered to produce only 12 fields of metadata. The Court, again relying on repudiated authority.

Focused vs. Restrictive Metadata Approach

And so, in reading the following excerpt, one might ponder whether the Court was focused, or bought outright the proposition that other fields of metadata (master file table analysis, for example) were of so little value that it would be wasteful to order production:

The Shareholders seek all of the metadata associated with emails and word documents produced by the PE Firms. The PE Firms refuse to produce all metadata and instead offer to provide 12 fields of metadata. The court rules in favor of the PE Firms for two reasons. First, case law shows wariness about metadata's value in litigation. Many courts have expressed reservations about the utility of metadata, explaining that it does not lead to admissible evidence and that it can waste parties' time and money. Wyeth v. Impax Lab., Inc., 248 F.R.D. 169, 171 (D.Del.2006); Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 651 (D.Kan.2005). Second, Rule 34 militates against the broad, open disclosure of metadata that the Shareholders seek. The Rule 34 Advisory Committee Notes to the 2006 Amendment express concern that producing diverse types of electronically stored information in the same format would be costly, burdensome, and ultimately fruitless. Fed.R.Civ.P. 34 advisory committee's notes. Instead, the notes explain that requests should be tailored to each type of program, so only necessary data is produced.” Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526, 2 (D.Mass. 2009)

“The court applies this principle to the metadata requests here. Rather than a sweeping request for metadata, the Shareholders should tailor their requests to specific word documents, specific emails or specific sets of email, an arrangement that, according to their memorandum, suits the PE Firms. This more focused approach will, the court hopes, reduce the parties' costs and work. Furthermore, it reflects the general uneasiness that courts hold over metadata's contribution in assuring prudent and efficient litigation.” Id.

One wonders whether the Court’s law clerks set a research date field limitation that cut off all post 2006 decisional authority, or whether plaintiffs’ counsel was hopelessly outgunned.

My wager is on the latter.


Case: Esquire Deposition Services, LLC v. Boutot

Citation: 2009 WL 1812411 (D.N.J. 2009) described as [Not for
Date: 2009-06-22
Topics: Forensic Image data Supports Grant of TRO NJ

This decision comes to us from the U.S. District Court for the District of New Jersey and involves allegations of breach of non-compete and non-solicitation contract covenant, breach of duty of loyalty, tortious interference with business relationships, and trade secret misappropriation. Plaintiff sought a preliminary injunction against defendants “enjoining and restraining them from engaging in solicitation and competition” in violation of a co-defendant’s prior employment agreement with plaintiff.

Plaintiff also alleged that prior to defendant’s departure, the latter copied “hundreds” of electronic files from plaintiff’s computers. Plaintiff’s TRO request also included the following prayer for relief:

“Specifically, Esquire sought and obtained the issuance of a temporary restraining order, restricting Boutot from:

…(e) Destroying any electronic or hard copy document ... that he obtained from or by virtue of his employment with Esquire ... “ Esquire Deposition Services, LLC v. Boutot, 2009 WL 1812411, 4 (D.N.J.) (D.N.J. 2009)

Here now a (very ) short discourse on the requirements for obtaining injunctive relief. The elements required to be demonstrated are immediate, non-monetary irreparable harm to the movant. The Court also notes that injunctive relief is also an appropriate remedy to enforce a restrictive covenant:

“[T]he grant of injunctive relief is an ‘extraordinary remedy, which should be granted only in limited circumstances.’ ” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989) (citing Frank's GMC Truck Ctr. Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir.1988)). Generally, in determining whether to grant a preliminary injunction or a temporary restraining order, courts consider four factors:

(1) the likelihood that the applicant will prevail on the merits at final hearing; (2) the extent to which the plaintiffs are being irreparably harmed by the conduct complained of; (3) the extent to which the defendants will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest.

S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 374 (3d Cir.1992) (citing Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir.1990)). “[W]hile the burden rests upon the moving party to make [the first] two requisite showings, the district court” should look to factors three and four when relevant. Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.1994). “All four factors should favor preliminary relief before the injunction will issue.” S & R Corp., 968 F.2d at 374 (citing Hoxworth, 903 F.2d at 192).

*5 In order to prove irreparable harm, the moving party must “demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.” Acierno, 40 F.3d at 653 (quoting Instant Air Freight Co., 882 F.2d at 801). “Economic loss does not constitute irreparable harm.” Acierno, 40 F.3d at 653. “[T]he injury created by a failure to issue the
requested injunction must “be of a peculiar nature, so that compensation in money cannot atone for it....” Id. “The word irreparable connotes that which cannot be repaired, retrieved, put down again [or] atoned for.” Id. (internal citations and quotations omitted). In addition, the claimed injury cannot merely be possible, speculative, or remote. Id. at 655. “More than a risk of irreparable harm must be demonstrated. The requisite for injunctive relief has been characterized as a ‘clear showing of immediate irreparable injury,’ or a ‘presently existing actual threat; an injunction may not be used simply to eliminate a possibility of a remote future injury.’ ” Id. (quoting Cont'l Group, Inc. v. Amoco Chems. Corp., 614 F.2d 351, 358 (3d Cir.1980)). Esquire Deposition Services, LLC v. Boutot, L 1812411, 4 -5.

“Finally, injunctive relief is an available and appropriate remedy to enforce a restrictive covenant. See e.g., Arch Pers. Care. Prods., L.P. v. Malmstrom, 90 F. App'x 17 (3d Cir.2003) (affirming district court's grant of injunctive relief to enforce a non-compete agreement).” Id.

In performing its analysis, the Court discusses that the plaintiff is likely
to succeed on the merits of its breach of contract claim based at least in part on the likelihood that plaintiff’s trade secrets and proprietary information would be used by the ex-employee co-defendant and be his new employer (who just happened to be plaintiff’s direct competitor in other fields). The Court acknowledges the reality of Plaintiff’s apprehension in addressing what was discovery through electronic discovery:

“Esquire's trepidation over unwanted disclosure of its confidential and proprietary information is not unfounded. Esquire secured the services of Andrew Reisman, an expert in the field of computer forensics, for the purpose of analyzing activity on Boutot's work computer at Esquire (the“Esquire Laptop”). After conducting his analysis of the Esquire Laptop,FN9 Mr. Reisman testified that, in his expert opinion, on November 10, 2008 and November 13, 2008, a targeted group of files containing Esquire and personal Boutot data were copied to two thumb drives FN10. (Declaration of Andrew Reisman (“Reisman Decl.”), attached to Verified Complaint at ¶ 13.)

FN9. In order to perform the analysis, Mr. Reisman created a “forensic image” of the hard drive associated with the Esquire Laptop. ( See Reisman Decl., at ¶ 5.) According to Mr. Reisman, “a ‘forensic image’ of a hard drive is a verifiable copy of all data present on the drive, including both active files and areas of the drive that contain no active files but that nevertheless contain data.” ( Id.)

FN10. A thumb drive, or a USB drive, is an external storage device, which allows copied and stored data to be accessed from other computers. (Reisman Decl., at ¶ 14.)

The inescapable conclusion from Mr. Reisman's findings, Esquire asserts, is that Boutot has copied confidential Esquire files to thumb drives and has shared the files with MCS, in violation of the Agreement. This allegation is bolstered by the record before this Court, which includes copies of e-mails that Boutot sent to MCS employees, containing Esquire files.FN11 (Exhibit L, attached to the Avallone Cert.)

FN11. Such e-mails include a December 18, 2008 e-mail to an MCS technology department employee, to which Esquire's new client presentation module was attached. (5/28 Tr. 53:3-6; Exhibit L, attached to Avallone Cert.) “ Id. at p. 6

Not surprisingly, the Court granted plaintiff’s request for injunctive relief.

Oh, and perhaps metadata (referring to copying of files to thumb drives) was not “without value.”


Case: Stengart v. Loving Care Agency, Inc.

Citation: --- A.2d ----, 2009 WL 1811064 (N.J.Super. A.D. 2009)
Date: 2009-06-26
Topics: Adoption of N.Y. Theory of tort of conversion of ESI;
attorney client privilege trumps employer’s right to review emails sent
between employee and her attorney, email mining of Image By Opposing Counsel
results in ethics violation


This decision from the Appellate Division of the Superior Court of New Jersey finds the Appellate Division court adopting (or at least approving) the position of the Court of Appeals of NY that ESI is property; i.e., that a cause of action of conversion applies to intangible electronic records that are stored on a computer and are indistinguishable from printed documents.

In this case, the Court reasoned that the breach of a company’s computer use policy does not automatically grant it a possessory right in the breaching employee’s private emails:

Ignoring the significance of its express permission for “[o]ccasional personal use,” the company's argument appears to rely chiefly on the fact that plaintiff utilized the company's computer and that anything flowing from that use becomes subject to the company's claimed ownership right. We reject the company's ownership of the computer as the sole determinative fact in determining whether an employee's personal emails may become the company's property.” Id., at p. 6

In this regard, we agree with the tenor of a recent decision of the New York Court of Appeals, which discounted the significance of the fact that a company computer was the means by which an employee sent and received personal communications through a separate email account. See Thyroff v. Nationwide Mut. Ins. Co., 864 N.E.2d 1272 (N.Y.2007). Thyroff recognized that a computer in this setting constitutes little more than a file cabinet for personal communications. Id. at 1278. Property rights are no less offended when an employer examines documents stored on a computer as when an
employer rifles through a folder containing an employee's private papers or reaches in and examines the contents of an employee's pockets; indeed, even when a legitimate business purpose could support such a search, we can envision no valid precept of property law that would convert the employer's interest in determining what is in those locations with a right to own the contents of the employee's folder of private papers or the contents of his pocket. As a result, we conclude a breach of a company policy with regard to the use of its computers does not justify the company's claim of ownership
to personal communications and information accessible therefrom or contained
therein.“ Id.

Employee-Attorney Email Sent Through Company Computer Protected by Attorney
Client Privilege

The plaintiff here also communicated with her attorney through defendant company’s computers. The trial court determined that the employee had in so doing waived her attorney client privilege to those emails. The appeals
court disagreed, holding that:

“…[W]e conclude that the judge exhibited inadequate respect for the attorney-client privilege she found that plaintiff “took a risk of disclosure of her communications and a risk of waiving the privacy she expected” when she communicated with her attorney through her work-issued computer, and that plaintiff's action in the face of the policy
“constitute[d] a waiver of the attorney client privilege.” Accordingly, we reverse the order under review and conclude that the emails exchanged by plaintiff and her attorney through her personal Yahoo email account remain
protected by the attorney-client privilege. There being no other basis for finding a waiver of the privilege, the judge erred in denying plaintiff's motion for the return of all copies of the emails in question. Id. at p. 9]

Ethics Sanctions

It’s never a good sign when an appellate court speaks about attorney behavior inconsistent with a rule regulating attorney conduct. Here, the fact that the company’s attorney foraged through a forensic image of a hard drive, and read certain privileged documents, appears to have triggered a violation of New Jersey Rules of Professional Conduct:

“As we have already mentioned, the company's attorney has examined the privileged emails in question, referencing them in the little discovery that has taken place to date in this matter. We conclude that counsel's actions were inconsistent with the obligations imposed by RPC 4.4(b), which provides that when representing a client, “[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender.” Id.

The Court makes no distinction between reviewing a paper document and conducting a forensic examination of a computer’s hard drive:

“In considering these obligations, we are not unmindful that circumstances may arise when the attorney who has received such a document-whether through paper discovery or by forensically examining a computer's hard drive-may
arguably believe the document is not protected by the attorney-client privilege. For example, the attorney here assumed that the company's policy regarding the use of its computers turned plaintiff's privileged emails into the company's property. Notwithstanding such an assumption, attorneys are obligated, as suggested by RPC 4.4(b), to cease reading or examining the
document, protect it from further revelations, and notify the adverse party of its possession so that the attorney's right to retain or make use of the document may thereafter be adjudicated by the court.” Id.

The Court the determines that the company’s counsel had acted with “studied indifference” and that it had an affirmative duty to alert plaintiff that it was in possession of emails protected by attorney-client privilege:

“Here, rather than follow such an approach, Sills Cummis appointed itself the sole judge of the issue and made use of the attorney-client emails without giving plaintiff an opportunity to advocate a contrary position. That being the case, we reject the trial judge's finding that Sills Cummis had no affirmative duty “to alert plaintiff that it was in possession of the
subject E-mail before reading it because Sills Cummis believed in good faith, based on [the company's] policy, that the E-mail was not protected by any privilege.” Sills Cummis may have reached that determination in good faith; but counsel thereafter acted in studied indifference to the right of plaintiff to argue otherwise and to seek a contrary ruling from an impartial
judge.” Id., at p. 10

The Court reversed and remanded, in part ordering the return of all subject email, and for additional findings, including the imposition of sanctions against defendant’s counsel.


Case: Electronic Funds Solutions, LLC v. Murphy
Citation: 2009 WL 1717383 (Cal.App. 4 Dist. 2009) [Not Officially
Date: 2009-06-25
Topics: Large Terminating Sanction for ESI Spoliation

Think terminating sanctions for spoliation might be costly? Well, they are, and this “Not Officially Published” decision from the California Court of Appeals, 4th District, Division 3 stands out as 2009’s poster child for the potential severity of a spoliation sanction.

The decision is short, and so will be this analysis. It seems that the trial court defaulted defendants for having erased their computer hard drives were ordered to be produced in discovery:

Defendants Electronic Payment Technologies, LLC (EPT), Michael Murphy, and Ty Bishop suffered a default judgment of $24,040,272, entered in favor of plaintiffs Electronic Funds Solutions, LLC (EFS) and Michael Barry, after
defendants erased information contained on computer hard drives the trial court had ordered produced in discovery.” Electronic Funds Solutions, LLC v. Murphy, 2009 WL 1717383, 1 (Cal.App. 4 Dist. 2009)

After a first reversal, a second complaint, and a second default (can’t make this stuff up), the trial court entered judgment against defendants for 67.3 million dollars, comprising 10 million in tort damages, 7 million in pre-judgment interest, 72,000 in damages for conversion, of $20 million in exemplary damages for trade secret misappropriation; $30 million in general
punitive damages; and $224,675.97 in attorney fees and costs.

The appellate panel first finds that the court did not abuse its discretion in imposing terminating sanctions:

The trial court's previous discovery orders are still outstanding and the evidence demonstrates defendants have failed to fully comply. Moreover, defendants' inability to produce the information because they intentionally destroyed some of the responsive materials or transferred them to a third party is not an excuse for failing to obey the trial court's discovery
order.” Id.

The nature of defendants’ ESI discovery abuse:

The EFS Computer's hard drive had also been wiped by the Data Eraser software, but the program had been aborted before completion. The Data Eraser program was run on April 10, 2002, at approximately 2:35 p.m. Given the hearing on the motion to compel on April 10 began at 3:00 p.m., and defendants had promised to hand the computer over at the hearing, it appears
the defendants aborted the Data Eraser program because defendants ran out of time to complete the wiping process. Although interrupted before it could complete its work, the Data Eraser program did destroy the hard drive's master boot record, partition table, file allocation table, and a number of other sectors. The destruction of these portions of the hard drive made the computer impossible to start up, and prevented the hard drive from being read even as a secondary drive to a running computer. The data recovered from this computer was obtained through forensic techniques.” Id., at p.

“Despite the intentional destruction of data on the hard drives, defendants served supplemental responses asserting under oath they had fully complied with the demands, making no mention of any data removed from the computers.”

It must not have been much fun being defendants’ counsel.

One Data Wipe May Comprise a Continuing Discovery Violation

Here, defendants’ own actions rendering permanently unable to comply with a discovery request (or order) is tantamount to being permanently (and in continuing) violation of a discovery order. The Court determined this to be adequate justification for the imposition of a default:

A continuing discovery violation does not end if the responding party is permanently unable to comply because that party intentionally destroyed the materials it was ordered to produce. To simply wipe the slate clean would allow defendants to benefit from their intentional destruction of evidence, an outcome not mandated by the Greenup decision. In our prior opinion, we rejected any suggestion defendants might not have erased data had they known their liability could reach $24 million: “There is a significant difference between choosing not to defend a lawsuit at all, and defending a lawsuit by willfully disobeying lawful discovery orders. Defendants willing to accept known liability may properly elect to watch from the sidelines.’” Id.

“But if a defendant chooses to participate, he or she must play by the rules.... We cannot endorse a litigant's conscious decision to deliberately destroy evidence-based on the perception damages are limited to a particular amount.” ( Electronic Funds, supra, 134 Cal.App.4th at p. 1178.) Accordingly, we conclude the trial court did not abuse its discretion instriking defendants' answers to plaintiffs' amended complaint and entering a default. Id.

First the good news for defendant: The court vacated the 50 million dollar punitive damage award. The bad news: This left intact a nearly 17 million judgment.


Case: IDT Corp. v. Morgan Stanley Dean Witter & Co.

Citation: --- N.Y.S.2d ----, 2009 WL 1794364 (N.Y.A.D. 1 Dept. 2009)
Date: 2009-06-25
Topics: Third party duty to preserve evidence; spoliation as basis for tort of fraudulent concealment or misrepresentation in NY by [not uninvolved] non-party; spoliation of subpoenaed documents by non-party.

In this decision from the New York Supreme Court, Appellate Division, the Court found that New York recognizes that intentional spoliation of evidence may be used the basis for asserting claims of fraudulent concealment or fraudulent misrepresentation.

Keep in mind that defendant Morgan Stanley was a non (but not uninvolved) party upon whom plaintiff served a subpoena for certain relevant documents involving a breach of contract between plaintiff and third party:

“The issue on this appeal is whether cognizable claims for fraudulent misrepresentation and fraudulent concealment may be based on intentional spoliation of evidence, notwithstanding that New York does not recognize an independent tort of third-party negligent spoliation. We conclude that intentional spoliation of evidence may be the basis for such claims.” IDT Corp. v. Morgan Stanley Dean Witter & Co., 2009 WL 1794364, 1 (N.Y.A.D. 1 Dept. 2009)

What was fraudulently misrepresented and concealed? It turns out that defendant Morgan Stanley produced on 2,000 of 500,000 relevant documents requested in plaintiff’s other-action subpoena:

The Court distinguishes two New York precedents concerning third (or non) party duties to preserve.

The Court first notes that the instant plaintiff asserted a claim of intentional spoliation. Moreover, as the Court points out, defendant Morgan Stanley, although not a party, was a fiduciary to the defendant in the unrelated action, and therefore “not uninvolved:”

“The Court of Appeals' decision in Ortega v. City of New York (9 NY3d 69 [2007], supra ) does not require dismissal of IDT's claims for fraud and fraudulent concealment simply because the vehicle for the alleged fraudulent conduct was concealment of evidence. First, the Ortega holding involved a claim of negligent spoliation of evidence, not a claim of intentional concealment or spoliation of evidence. Second, unlike the City in Ortega, which the court noted was a third party with a duty to preserve evidence but with no connection to the underlying litigation, Morgan Stanley was not an uninvolved third party to the arbitration proceeding between IDT and Telefonica. It had fiduciary relationships with both parties, and the concealment of documents from IDT arguably both benefitted its client Telefonica in the arbitration and protected Morgan Stanley from being sued by IDT.” Id., at p. 2

Spoliation as Basis for Fraudulent Concealment in Subsequent Action

In an interesting exercise in logic, the Court also distinguishes New York decisional authority refusing to recognize third party spoliation. In essence, it appears that the Court finds that while the evidence was spoliated (with contents unknown) during the first lawsuit (against a different defendant), the concealed documents were ultimately produced during the second lawsuit, thereby rendering any claims of speculation as to causation and damages moot.

“Two additional circumstances distinguish this case from Ortega. The Ortega court refused to recognize a third-party spoliation claim because the content of the lost evidence is unknown, thus leading to speculation as to causation and damages. Here, there is no such concern because the concealed documents have been produced. The court also found that it would not be sound public policy to permit an independent tort of spoliation to be asserted against a municipality. There are no public policy reasons to disallow IDT's claims for fraud and fraudulent concealment against its fiduciary based on the latter's spoliation of subpoenaed documents.” Id.

Result: New York recognizes (as does New Jersey) the tort of fraudulent concealment and fraudulent misrepresentation based on spoliation of evidence:

“Importantly, the Ortega court wrote that “[a]t bottom, plaintiffs seek recognition of a new cause of action because they cannot meet the traditional proximate cause and actual damages standards at the foundation of our common-law tort jurisprudence” (9 NY3d at 80). IDT suffers from no such impediment. It has met the pleading standard for fraud and fraudulent concealment and thus has a remedy under existing tort principles. There is no indication in Ortega that the court would reject an already recognized common-law tort claim simply because the claim was based on the spoliation of evidence.

We note that the New Jersey courts, which do not recognize a separate tort action for intentional spoliation, recognize a claim of fraudulent concealment based on the intentional spoliation of evidence ( see e.g. Rosenblit v. Zimmerman, 166 NJ 391, 766 A.2d 749 [2001]; R.L. v. Voytac, 402 NJ Super 392, 407-408, 954 A.2d 527, 536 [App.Div.2008] certif granted in
part 197 NJ 259, 962 A.2d 530 [2008]; Viviano v. CBS, Inc., 251 NJ Super 113, 597 A.2d 543 [App.Div.1991] certif denied 127 NJ 565, 606 A.2d 375 [1992] ). There is no sound reason for New York courts to conclude otherwise.” Id., at p. 3


Steven W. Teppler, Esq.
Senior Counsel • KamberEdelson, LLC
Sarasota, FL

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