Litigating Computer Forensic Evidence


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This presentation was made by Steve Milbrath at the Electronic Everything: Litigating Computer Forensic Evidence Issues seminar sponsored by the Business Law Section of the Florida Bar on June 25th at the Florida Bar Annual Convention.

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Litigating Computer Forensic Evidence

  1. 1. Stephen D. Milbrath Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A. The Divide Between State and Federal Courts on the Duty to Preserve Evidence        
  2. 2. The Federal Duty to Preserve <ul><li>Swofford v. Eslinger, 671 F. Supp.2d 1274 (M.D. Fla. Sept. 28, 2009) </li></ul><ul><li>Sanctions may be imposed against a litigant who is on notice that information in its possession is relevant to potential litigation and nevertheless destroys such information. </li></ul><ul><li>Optowave, 2006 U.S. Dist. LEXIS 81345 (M.D. Fla. Nov 7, 2006) </li></ul>
  3. 3. Elements In Federal Court <ul><li>A Potential Litigation </li></ul><ul><li>A Legal or Contract Duty to Preserve Relevant Evidence </li></ul><ul><li>Destruction of the Evidence </li></ul><ul><li>Significant impairment of the ability to prove the Case </li></ul><ul><li>Causation </li></ul><ul><li>“ bad faith” </li></ul><ul><li>Damages (if you are suing a 3 rd party) </li></ul>
  4. 4. The Source of the Court’s Power <ul><li>Inherent power to manage the court’s own affairs </li></ul><ul><li>Applicable law </li></ul><ul><li>Contract </li></ul>
  5. 5. THE LOGIC OF THE FEDERAL VIEW <ul><li>Zubulake V. UBS Warburg, 220 F.R.D. 212 (S.D. N. Y. 2003): A common law duty to preserve arises when you know of potential litigation . That duty extends to evidence of relevance to future litigation </li></ul><ul><li>Sedona Conference Best Practices: 2003-2005: A duty to preserve arises for reasonably foreseeable litigation, but that duty does not require extraordinary measures </li></ul>
  6. 6. The Different State Court Approach <ul><li>Electric Machinery Enterprises, Inc. v. Hunt Construction Group, Inc., 416 B.R. 801 (M.D. Fla. Aug. 28, 2009): There is NO Florida common law duty to preserve evidence before litigation has commenced </li></ul><ul><li>Exceptions: contract or statute </li></ul><ul><li>There is some support in Florida for the imposition of an adverse inference where critical evidence is destroyed intentionally even where there was no duty to preserve </li></ul>
  7. 7. Sanctions Without a Duty ? <ul><li>Golden Yachts, Inc v. Hall, 920 So. 2d 777 (Fla. 4 th DCA 2006): There is no common law duty to preserve prior to suit BUT an adverse inference may arise where damaging evidence is destroyed in anticipation of suit. </li></ul><ul><li>Judge Williams In EME: Suggests he would follow Golden Yachts and draw an adverse inference but for the fact that it was not necessary: Plaintiff met its burden anyway. </li></ul>
  8. 8. The Resulting Lack of Certainty <ul><li>If you assume the case will be litigated in federal court, you have a categorical duty to preserve potentially important evidence </li></ul><ul><li>If you assume that you will be sued in state court, there is no common law duty to preserve evidence </li></ul><ul><li>But your client might still suffer an adverse inference if it destroys evidence in bad faith and not pursuant to a routine document destruction protocol </li></ul><ul><li>This would suggest the continued importance of pre-suit preservation of evidence demands </li></ul>