Forensic reviews of an opposing party’s computer to obtain electronically stored information (ESI) have been recently addressed in a number of state court decisions. The request is sometimes initially denied, as courts first want to see if the requesting party can obtain the sought after ESI from another source, as formed part of the rationale for the denial for such a review in the recent decision Genger v. Genger, 2016 N.Y. App. Div. LEXIS 7835, 2016 NY Slip Op. 07988 (1st Dep’t Nov. 29. 2016). The disclosure to the requesting party of irrelevant, confidential or privileged information resulting from such a review can be prevented through reviewing protocols that are often standard, and in Matter of Nunz, 2016 N.Y. Misc. LEXIS 2891, 2016 NY Slip Op. 51185(U) (Surr. Ct. Erie Co. Aug. 9, 2016), the Surrogate’s Court, in fact, heightened those protections. Finally, where it is demonstrated that a party after multiple attempts has not adequately reviewed and produced its ESI, despite an affidavit of a good faith search, a trial court in Encore I v. Kabcenell,2016 N.Y. Misc. LEXIS 4267, 2016 NY Slip Op. 32282(U) (Sup. Ct. N.Y. Co. Nov. 4, 2016), opted to order a forensic examination of a party’s computer to seek to ensure a fulsome ESI production.

Motions to dismiss predicated upon “documentary evidence,” pursuant to CPLR 3211(a)(1), are increasingly using emails to support dismissal. While the First Department has long held that under certain circumstances emails may constitute “documentary evidence,” recent decisions have provided detailed guidance—fact specific to the situation—as to what constitutes a “conclusive fact, which often it is not, as is required to be “documentary evidence” for purposes of Rule 3211(a)(1).

Forensic Computer Reviews

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