MSBA Computer and Technology Law Section

Use mediocre computer forensics expert and discover that the "Safe Harbor" provision is very shallow!

In April, Damien Riehl brought us the story of the Eight Circuit's ruling in Greyhound Lines, Inc. v. Wade that there was no abuse discretion in a trial court's denial of sanctions for spoliation, where the movant failed to demonstrate intent and prejudice.  In another post, last month, I discussed the precarious possibilities of forensics experts, who can ruin a case.

Bringing these two topics together, we have the case of Doe v. Norwalk Community College, where the U.S. District Court in Connecticut imposed spoliation sanctions for a party's failure to prevent the destruction of evidence. Defendants sought shelter under safe harbor provision of Fed.R.Civ.P. 37(f), but the district court disallowed the defendants to take advantage of the provision, since they made no attempts to preserve relevant evidence.  The credibility of the computer forensics experts (or non-experts, depending how one might characterize them) decided the outcome of this case.  >> read more >>

2007 Computer and Technology Law Institute

I just received my CLE notice for the 2007 Computer and Technology Law Institute and I'm already looking forward to it.  Mark your calendars for October 30th!

Computer Animations at Trial: A Persuasive Tool to Be Utilized with Care

"Animation is a new and powerful evidentiary tool, but must be used with great care." ¹   Although this article primarily concerns Computer Animations, some general assertions are made with respect to demonstrative evidence in all forms. Although Minnesota cases are discussed, I will cite the Federal Rules, rather than local state rules.

"If you have a good animation, it's such a difficult thing for the other side to fight," said David Golomb, a Manhattan attorney who has served as president of the New York State Trial Lawyers Association. He calls it "devastating evidence"

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¹State v. Stewart, 643 N.W.2d 281, 295 - 296 (MN 2002) (citing Gregory P. Joseph, A SIMPLIFIED APPROACH TO COMPUTER-GENERATED EVIDENCE AND ANIMATIONS, 156 F.R.D. 327 (1994); Fred Galves, WHERE THE NOT-SO-WILD THINGS ARE: COMPUTERS IN THE COURTROOM, THE FEDERAL RULES OF EVIDENCE, AND THE NEED FOR INSTITUTIONAL REFORM AND MORE JUDICIAL ACCEPTANCE, 13 Harv. J.L. & Tech. 161 (2000).)