Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

portions of the e-mail were not protected by the attorney-client privilege. Finding a lack of appellate
jurisdiction under the collateral order doctrine because the privileged information had already been
disclosed, the court dismissed the appeal. The court noted that while the disclosure of the e-mail
was unfortunate, “the chicken has already flown the coop – the alleged harm from disclosure has
already occurred.”
� Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008). In this case, the
plaintiffs appealed the district court’s ruling, claiming the defendants violated the Stored
Communications Act (“SCA”) and their Fourth Amendment rights by producing plaintiff’s text
messages to the police department. The police department claimed it sought the plaintiffs’ text
message transcripts to determine if the usage overages the plaintiffs incurred were due to personal
messages. Categorizing the defendant service provider as an “electronic communication service”
(ECS) that knowingly provided transcripts of the text messages to the defendant City who was
merely a “subscriber” and not “an addressee or intended recipient of such communication,” the
court determined the defendant violated the SCA and remanded the case to the district court. The
court also agreed with the plaintiffs that the search violated the Fourth Amendment, finding that the
plaintiffs had a reasonable expectation of privacy in the text messages stored on the service
provider’s network and that the search was conducted unreasonably and intrusively.
� United States v. Giberson, 527 F.3d 882 (9th Cir. 2008). In this criminal conviction appeal, the
appellant argued that the trial court erred in denying his motion to suppress incriminating evidence
found on his computer. The computer was seized via a search warrant for documents and records
relating to child support obligation failures, and was forensically searched under a warrant for
evidence of fraudulent activities. The appellant argued that the general principle that a search
warrant for materials authorizes the search of objects that may contain those materials should not
apply to computers because computers contain an enormous volume of data, likely contain
irrelevant personal data, and likely contain First Amendment-protected data. Also, the appellant
argued that the forensic search of his computer should have been limited to files likely to contain
documents relevant to the search warrant’s purpose. Finding the appellant’s technology-based
arguments to be unpersuasive, the court held that a search warrant describing a document
reasonably likely to be contained on a computer authorizes the seizure of that computer. The court
also cited precedent which reasoned that a forensic search methodology limited to certain files is
unreasonable since computer records are extremely susceptible to tampering, hiding or
destruction. Subsequently, the court upheld the trial court’s decision not to suppress the computer
evidence and the appellant’s conviction.
� Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006). In a discrimination suit based on an ADA
claim, the plaintiff appealed sanctions against him for evidence spoliation involving the deletion of
2,200 files from his work-issued laptop. The defendant’s computer forensic expert determined the
plaintiff intentionally wiped the laptop’s hard drive before turning it over to defendant for
examination. The plaintiff admitted to running a program designed to delete any files from the
unallocated space on his hard drive but argued that the deletion was only performed to protect his
privacy interests. The court, however, stated the plaintiff had “ample notice” to preserve any
relevant evidence and “the files he destroyed were not merely ‘private’ and were potentially
relevant to the litigation at hand.” The appellate court determined that the district court did not
abuse its discretion when determining that the plaintiff acted in bad faith in destroying electronic
files and that defendant was prejudiced because of such destruction. The court agreed further that
lesser sanctions would not be useful since any attempts to rectify the harm done by plaintiff would
be “futile.” Therefore, dismissal was proper.
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