Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

he allegedly sent to the victim. The appellate court held that the victim’s testimony that she had
received and printed the e-mails on her computer was sufficient authentication under the rules of
evidence, and the court upheld the conviction.
� Harveston v. State, 798 So.2d 638 (Miss. Ct. App. 2001). In a criminal burglary prosecution, the
court refused to allow in computer database print-outs under the State’s business records
exception to the hearsay rule. The court held that the State failed to meet its burden because
“[T]here was no evidence offered as to the means by which the information…was compiled. The
only testimony came from an investigating officer who limited his testimony to the fact that law
enforcement officers routinely make use of such information. [However, t]he reliability of the
information in ‘business records’ is determined by the competence of the compiler of the
information and not the extent of the consumer’s reliance on information received from another
source.”
Texas
� Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. Feb 8, 2012). In this appeal of a murder
conviction, the defendant alleged that various postings from two MySpace accounts registered
under the defendant’s e-mail address were inadmissible because the State could not establish that
he was the author. Extending the basic rationale used to authenticate e-mails, chat room
dialogues and text messages, the court looked at whether the MySpace postings were sufficiently
linked “such that a reasonable juror could have found that they were created and maintained” by
the defendant. The State pointed to the substance of the postings—which made reference to the
deceased, the defendant’s gang, the shooting, the State’s key witness and further contained
numerous photos of the defendant’s unique tattoos—in an attempt to meet this threshold. Affirming
the lower court’s decision, the court found that this circumstantial evidence, taken as a whole,
sufficiently established that the MySpace pages were created and maintained by the defendant.
� Gaalla v. Citizens Medical Ctr., 2011 WL 2115670 (S.D. Tex. May 27, 2011). In this discovery
dispute, the plaintiffs sought sanctions, alleging the defendants failed to preserve backup tapes,
take timely snapshots of relevant e-mail accounts and deleted e-mails. Citing Zubulake, the court
noted that the duty to preserve generally does not extend to inaccessible backup tapes and
declined to impose sanctions finding the plaintiffs failed to demonstrate any applicable exception to
this general rule. Further, the plaintiffs failed to present evidence of bad faith, a prerequisite to
severe sanctions in the Fifth Circuit. On the contrary, the court determined the defendants took
reasonable preservation steps by issuing a timely litigation hold, taking multiple "snapshots" of
relevant e-mail accounts and preserving available backup tapes. The court ordered the defendants
to institute a "journaling process" to continue preserving all relevant e-mail accounts indefinitely in
addition to the available backup tapes, which the plaintiffs’ forensic expert was given access to
search. Finally, the court ordered the parties to reach a preservation agreement going forward.
� In re Royce Homes, LP, 2011 WL 873428 (Bkrtcy. S.D. Tex. Mar. 11, 2011). In this bankruptcy
litigation, the trustee sought production of documents that a key employee of the debtor company
claimed as privileged. Despite using his work computer and company e-mail account for personal
matters, the employee argued that he did not waive attorney-client privilege and maintained that
only necessary third parties were privy to his communications. Rejecting this argument, the court
focused on the debtor company’s Electronic Communications Policy. The policy stated that nothing
contained on any company electronic system would be considered private and permitted limited
personal communications "with the understanding that personal communications may be
135