Cyberspace October 2008

Discovery can affect you too

Your client's child is sick, but her health fund won't pay for treatment. The child suffers from anorexia nervosa and the insurer wants proof that it is a biological, not psychological illness. Finally you start proceedings against the insurer and suddenly the child is hit with an order for discovery covering the child's diary, emails, instant messenger conversations, Facebook and MySpace profiles and communications, blog posts and other online activity. Suddenly you are now retaining a computer forensic specialist to examine her home computer, mobile phone for SMS, school computer, HotMail account and anything else she's ever touched.

This isn't pure speculation - parts of it happened in Beye v Horizon Blue Cross Blue Shield Of New Jersey, Inc (New Jersey District Court 2:2006cv05337) and another matter which was consolidated for discovery purposes. The court had ordered that the child not be deposed, so the defendant had to look elsewhere for indications as to the cause of the disorder. Initially the order dealt with communications with others, but it was later widened to include any writing, such as diaries. There was naturally opposition to this, and particularly the diaries, as these could be theraputic tools for the child and not necessarily of probative value.

One plaintiff claimed that they had no responsive documentation, but the insurer responded that it had seen copies of emails from the family's Yahoo! email account to a treating doctor and therefore the plaintiff was either hiding information or not diligently searching for documents.

It's easy to see how costs could go well beyond that normally expected in such a case. The cost of forensically imaging relevant computers, inspecting them for responsive documents, trawling the internet for postings, and possibly dealing with mobile phone carriers for SMS remaining on their systems is likely to be very significant. If proper care of the computers is not taken (probable for a home computer) then the defendant is likely to be able to rely on adverse inferences and the whole claim is in disarray. This is happening to defendants in music-sharing cases today, who being unrepresented when a statement of claim arrives, immediately react by wiping their computer. Such destruction of obviously relevant material gives rise to significant adverse inferences under common law, and statute law in Victoria.

Jury trials

New Zealand District Court Judge David Harvey recently ordered that online media not publish the names of two accused. This resulted in The New Zealand Herald being able to publish the names in the print version on 26 August 2008 (and evening tv news named them as well), but not able to place the same information on its web site.

A lot of internet commentators laughed at the judge, but he had a very good point. Jurors regularly, despite warning to the contrary, carry out their own research. This makes it easy to find out if accused have prior charges or convictions. I have a close friend who was called up for jury duty in the trial of Bruce Burrell for the murder of Dorothy Davis. I knew, but she didn't, that he had previously been convicted of the murder of Kerry Whelan. A quick Google would have set her straight, and one wonders how that would have affected jury deliberations.

Careful

I've warned in the past about the consequences of putting your profile up on sites such as MySpace or Facebook - one has to consider the effect they may have on your employability or reputation. In the USA some prosecutors are using unflattering photographs from such sites during sentencing or character cross-examination. Photographs of drunken defendants on a wild night out are being put to witnesses in drink-driving cases, and they probably carry more weight than the obligatory character reference from the local priest and school teacher.