Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

and found that the records produced matched “perfectly.” Contrary to the defendant’s claim, the
expert explained that it was “highly unlikely” that the data became corrupt as a result of the process
used to copy the data. Rather, the data on the archival media had been manually manipulated.
Based on the expert’s testimony, the court granted judgment in favor of the plaintiff.
� Byrne v. Byrne, 650 N.Y.S.2d 499 (N.Y. Sup. Ct. 1996). In a divorce proceeding, the wife sought
access to her husband’s computer, which husband used for both business and personal purposes
even though computer was provided by husband’s employer. The wife was awarded such access
to search the computer for information about the couple’s finances and marital assets.
� Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995). The court found
that the law is clear that data in computerized form is discoverable even if paper copies of the
information have been produced. The producing party can be required to design a computer
program to extract the data from its computerized business records. But such an order is subject to
the court’s discretion as to the allocation of the costs of designing such a computer program.
� Strauss v. Microsoft Corp., 1995 WL 326492 (S.D.N.Y. June 1, 1995). The court denied
Microsoft’s motion to exclude evidence of offensive e-mails in a hostile work environment lawsuit.
� Santiago v. Miles, 121 F.R.D. 636 (W.D.N.Y. 1988). The court noted that “[a] request for raw
information in computer banks is proper and the information is obtainable under the discovery
rules.”
� United States v. IBM, 76 F.R.D. 97 (S.D.N.Y. 1977) Where the defendant was to produce
information to the plaintiff pursuant to prior court orders, but production did not comport with spirit
and intent of those orders and was highly technical and complex in nature, the court determined
that “exceptional conditions” existed, warranting appointment of examiner. The examiner’s duties
included reporting to court as to information that the defendant possessed and produced and
supervising discovery.
Vermont
� In re Boucher, 2007 WL 4246473 (D.Vt. Nov. 29, 2007). In this criminal case, the defendant was
stopped at the customs and border station while entering Vermont from Canada. Agents searched
his laptop and found what appeared to be images of child pornography. The defendant was
arrested and charged with transportation of child pornography. After imagining the defendant’s
hard drive, agents learned they were unable to further access the files on the drive because the
files were encrypted, password protected and inaccessible. Thereafter, the government
subpoenaed the defendant and directed him to provide all documents that reflected the password.
The defendant moved to quash the subpoena, claiming compliance would violate his Fifth
Amendment right against self-incrimination. The court reiterated the requirements for Fifth
Amendment protection as: a compelled, testimonial communication that is incriminating in nature.
The court determined that a subpoena constitutes compulsion because it requires compliance and
as the files sought allegedly contained child pornography, entry of the password would therefore be
incriminating. As such, the contentious issue was whether entry of the password constituted a
testimonial communication. The court held that entering a password into a computer communicates
facts that convey the contents of one’s mind, and therefore found the act of entering this password
to be testimonial, implicitly demonstrating that the defendant knew the password and had access to
the files. The court therefore granted the defendant’s motion to quash the subpoena.
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