Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

defendant plainly manifested an expectation that his e-mails would remain private given the
sensitive and “sometimes damning substance” of the e-mails, viewing it as highly unlikely the
defendant expected the e-mails to be made public as people “seldom unfurl their dirty laundry in
plain view.” Next, the court determined that it would defy common sense to treat e-mails differently
than more traditional forms of communication and found that neither the possibility nor the right of
access by the Internet Service Provider (ISP) is decisive to the issue of privacy expectations.
Based on these conclusions, the court held the government may not compel an ISP to turn over emails
without obtaining a warrant first. However, the court ultimately found the government relied in
good faith on the Stored Communications Act in obtaining the e-mails and determined the
exclusionary rule does not apply. Turning to the “prodigious” volume of discovery that consisted of
millions of pages, the court disagreed with the defendants’ arguments, noting in particular that
Fed.R.Crim.P. 16 is silent on what form discovery must take.
� State v. Rivera, 2010 WL 339811 (Ohio App. 12 Dist. Feb. 1, 2010). In this action involving the
Stored Communications Act (SCA), the defendant appealed his conviction, arguing text and picture
messages obtained from his cell phone provider should have been suppressed. The defendant
also argued the trial court erred in not denying the SCA as unconstitutional. Denying the
defendant’s argument regarding the constitutionality of the SCA, the court found the detective
violated the SCA by not providing notice to the defendant as required. However, the SCA does not
include exclusion as a remedy, and thus the exclusionary rule was inapplicable. Addressing the
suppression argument, the court deferred to the trial court’s determination of probable cause and
found that based on the facts and circumstances, there was a substantial probability that evidence
of criminal activity would have been found through other locations and media. Thus, the court
denied the defendant’s appeal and affirmed the trial court’s ruling.
� Enquip Tech. Group, Inc. v. Tycon Technoglass, S.R.L., 2010 WL 53151 (Ohio App. 2 Dist.
Jan. 8, 2010). In this complex international business litigation, the defendants appealed an order of
the trial court that held the European Union Data Protection Directive 95/46/EC (“Directive”) did not
limit discovery. The defendants argued that the trial court’s ruling was a clear error, and that the
exception provided in Article 26(1)(d), which permits the transfer of data when necessary to
establish, exercise or defend legal claims, was inapplicable. In response, the plaintiffs claimed that
the defendants failed to meet the burden required to obtain a protective order because no effort
was made to demonstrate the relevance of the Directive to any of the plaintiffs’ specific discovery
requests. Agreeing with the plaintiffs, the appellate court affirmed the trial court’s ruling. In support
of its opinion, the appellate court cited the trial court’s reasoning that the defendants subjected
themselves to Ohio law by doing business there and that no reason existed to preclude response
to discovery requests under the Ohio Rules of Civil Procedure.
� Cornwell v. N. Ohio Surgical Ctr., Ltd., 2009 WL 5174172 (Ohio App. 6 Dist. Dec. 31, 2009). In
this wrongful death litigation, the defendants appealed the trial court’s ruling allowing the plaintiff’s
forensic expert to create a mirror image of the defendants’ hard drives. The defendants asserted
such intrusive access was not authorized under Fed.R.Civ.P. 34 and would violate prohibitions
against the disclosure of confidential medical information. In affirming the trial court’s order, the
appellate court dismissed the confidentiality argument, relying on testimony of the plaintiff’s expert
explaining that viewing confidential information was not necessary to the forensic imaging process.
The court also discarded the defendants’ Rule 34 argument, noting that the circumstances
surrounding the case gave rise to an inference of improper conduct on part of the defendants. In
further support of the trial court’s decision, the court noted the direct relationship between the
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