Email Issues

  • It is a given that investigators, spouses and counsel cannot access someone’s email account without due process. But once the email has been delivered to an email container on a shared or community property computer, (i.e. a computer that both spouses share), a New Jersey domestic decision allows that it is now fair game for examination by others with reasonable access to the computer.


  • Gates alleged chronic and continuous destruction of evidence and other violations. Court dismisses most of its claims, but does find that defendant destroyed word processing files that warranted sanction of ten percent of attorney¹s fees. The case has a long discussion of the elements of spoliation and the need for evidence of what was spoliated as a basis for drawing inference, and finds no spoliation.
  • Employer sued employee for misappropriation to trade secrets. Following temporary restraining order requiring employee to turn over copy of database he made when he resigned, employer moved for sanctions, claiming employee had destroyed critical parts of database to avoid discovery and in violation of TRO. Court found that sanction of drawing inferences against employee for missing info was not appropriate, but imposed monetary sanctions against employee for violating TRO.
  • Fen-Phen litigation. Defendant Wyeth fails to preserve emails and then fails to turn over all emails and database info requested in discovery and subject to court order. This memo orders production of relevant emails by Wyeth and imposes costs of production on Wyeth. Also sanctions Wyeth and allows spoliation inference to jury for Wyeth¹s destruction of emails. Refers to “inexcusable conduct” by Wyeth several times.
  • Spoliation of information in Palm Pilot. Court ruled that Plaintiff had duty to preserve info in Palm Pilot that she knew might be relevant. But info is still discoverable, albeit in a more difficult way, so does not warrant dismissing case or allowing adverse inference. However, monetary sanctions imposed from costs as a consequence of spoliation.
  • P & G sued competitor and competitor’s distributors for spreading rumors of P&G’s Satanism, specifically alleging defamation, unfair competition, violations of Lanham Act, Utah Truth in Advertising Act, etc. Judge Kimball dealt with various motions here, including sanctioning P&G for failing to preserve relevant emails, and allowed P&G to do a keyword search of Defendant’s database on issues concerning agency or control in general, but limited search so that it would not yield general commercial or competitive information.
  • Detailed analysis and discussion of digital discovery issues and problems. Shareholders filed claim under False Claims Act, alleging that oil company understated quantity of oil produced from federal and Indian lands. Plaintiffs claimed that company thwarted discovery attempts by destroying backup tapes and files. Court found that Plaintiffs had failed to show that Defendant engaged in willful acts to thwart discovery, but the Defendant failed in its duty to preserve evidence that it should have known was relevant, and many files which should have been preserved were destroyed due to Defendant’s negligence. Court did not allow adverse inference instruction to jury, but did allow Plaintiffs to inform jury which tapes were destroyed and the impact of the destruction on their case.
  • Crown Life Insurance v. Craig
    US Court of Appeals case discussing sanctions against Crown for failure to comply with discovery order requesting raw data from a database to be examined directly.

Defence Access to Contraband Data (Child Pornography)