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This post
examines a recent opinion the Ohio Court of Appeals issued in a case involving
a civil suit between Vestige, Ltd., “a computer forensic company,” and Luther
Mills d/b/a The Mills Law Office. Vestige, Ltd. v. Mills, 2013 WL 2614837
(2013).
According
to the suit, the case began on July 15, 2008, when Mills, a lawyer, hired
Vestige . . . to examine computer evidence the State had seized
from the home of one of his clients. Mills had been retained by Danny Starner
to defend him against criminal charges . . . involving the alleged sexual abuse
of minors. [The State] seized several computers, external drives, and other
computer-related devices from Starner's home. [They] were searched for evidence
that would corroborate the statements of one or more of the alleged victims
that Starner had stored images of his victims on the computers and that he had
shown one victim pornographic images and/or `stories’ on a computer in his
kitchen.
During
discovery in Starner's criminal case, the prosecution provided the defense with
extensive information about what the Bureau of Criminal Investigation (`BCI’)
had recovered from Starner's computers. . . . BCI initially discovered little
or no incriminating evidence on [his] computers but later . . . determine[d]
that a software program, Evidence Eliminator, had been run on one or more of
the computers to delete numerous files.
Although BCI was unable to recover the
content of the deleted files, the prosecution planned to use . . . BCI's
forensic analysis as circumstantial evidence of Starner's guilt, based on an
inference that he had deleted the files because they were incriminating.
Mills
contracted with Vestige to conduct an independent forensic examination of the
evidence seized from Starner's home, explain the results . . . Mills and his
defense team and, if Mills concluded independent expert testimony would aid
Starner's defense, Vestige would provide an expert to testify at Starner's
trial.
It was understood . . . that Starner's defense team hired Vestige to
help it understand what the prosecution could prove about the operation of the
Evidence Eliminator program on Starner's computers.
Vestige analyst, Nick Ventura, conducted the bulk of the
forensic analysis of the numerous computers and other devices seized from
Starner's home. Ventura did not have experience testifying as an expert witness
at trial. . . .
Mills and Vestige agreed that, if the defense decided to
present expert testimony at Starner's trial, that testimony would be provided
by a more experienced Vestige analyst, Greg Kelley. Because Kelley had
testified as a trial expert approximately 20 times before, Mills believed he
would be qualified to handle cross-examination by the prosecution.
Vestige, Ltd. v. Mills, supra.
On
October 15, 2008, “several days before Starner's criminal trial commenced,”
Mills
and other members of Starner's defense team met with Kelley
and Ventura. The purpose . . . was to discuss Vestige's forensic analysis of
Starner's computers. . . . Kelley and Ventura [told] the defense team what
Ventura had found on Starner's computers and led them to believe the
prosecution would not be able to prove Starner operated the Evidence Eliminator
program to delete incriminating files from his computers. Based on what Mills
learned from Vestige at the meeting, he decided the defense would present
Kelley as an expert witness at Starner's trial. . . .
Because Ventura had performed most of the forensic work,
however, Mills asked him to attend the trial as well, to assist the defense team
in preparing its cross-examination of the BCI expert. Unbeknownst to Mills, Ventura
came to Starner's trial with written notes about the results of his computer
forensic analysis. . . .
[P]ortions of Ventura's written notes contradicted
some of Kelley's testimony and/or what he communicated to the defense team
about the results of Vestige's forensic analysis. The prosecution
cross-examined Kelley with Ventura's notes and admitted them as an exhibit at
trial. . . .
[T]he overall substance of the Vestige expert evidence at
Starner's trial was different from what Kelley had communicated to the defense
team. . . . Mills believed Kelley's expert testimony was damaging to Starner's
defense and . . . Kelley apologized to Mills after his testimony.
After the
trial, Mills took the position that, had Kelley accurately informed him about
the results of Vestige's forensic analysis, he would not have presented his
expert testimony at Starner's trial.
Vestige, Ltd. v. Mills, supra.
That
brings us to what seems to have actually triggered the litigation:
By the conclusion of its services, Vestige billed Mills a
total of over $30,000 for its time and expenses. Included in its bill, Vestige
charged its hourly rate of $250 for each of the hours that Ventura and Kelley
spent at Starner's trial, for a total of $12,000-15,000.
Although Mills had paid $15,000 of the bill . . ., he refused
to pay the balance. . . . Vestige sued Mills, seeking to recover the remaining
balance. . . . Mills counterclaimed, alleging he owed Vestige nothing, and in
fact might be entitled to a refund of what he had already paid, because Vestige
breached the contract by negligently performing its services.
Vestige, Ltd. v. Mills, supra.
As Wikipedia explains, in civil procedure a counterclaim is
a claim the defendant in a civil suit brings against the plaintiff, the person
who filed the civil suit. Wikipedia
gives several examples of when a counterclaim arises, one of which is that
“[a]fter a bank has sued a customer for an unpaid debt, the customer
counterclaims (sues back) against the bank for fraud in procuring the debt. The
court will sort out the different claims in one lawsuit. . . .”
The civil suit went to a trial before a jury, but after both
sides had presented all their evidence, Vestige moved for a directed verdict on
the counterclaim,
arguing Mills could not prove Vestige
breached its duty to perform its obligations under the contract because Mills
failed to offer expert testimony on the issue of its professional duty.
The
trial court agreed and granted a directed verdict on Mills' counterclaim. The
jury found in favor of Vestige on its breach of contract claim and awarded
damages of $15,928.48 plus interest.
Vestige, Ltd. v. Mills, supra.
As Wikipedia explains, in a jury trial a directed verdict is an order from
the presiding judge to
the jury to return a particular verdict. Typically, the judge
orders a directed verdict after finding that no reasonable jury could reach a
decision to the contrary. After a directed verdict, there is no longer any need
for the jury to decide the case.
On appeal,
Mills argued that the trial judge erred in granting a directed verdict on his
counterclaim because he did not present expert testimony to support his claim
that Vestige “failed to perform its services . . . in a reasonably professional
manner.” Vestige, Ltd. v. Mills, supra.
Mills claimed “the alleged breach of duty by Vestige was within the common
understanding of a lay person and, therefore, did not require expert testimony
to establish his claim.” Vestige,
Ltd. v. Mills, supra.
The court
noted that expert testimony might have been required if Mills sought to prove
that Ventura “or anyone else from Vestige” had failed “ to exercise reasonable
skill or judgment in analyzing the contents of Starner’s computers.” Vestige, Ltd. v. Mills, supra. It pointed out, however, that
Mills’ counterclaim did not allege any deficiencies in the
quality of forensic analysis Ventura performed on the
computer evidence seized from Starner's home. . . .The gist of Mills'
counterclaim was that, even if Vestige performed a competent forensic
evaluation of Starner's computers, it did not accurately and/or effectively
communicate the results of its analysis to Mills and other members of the
defense team.
Mills focused on evidence that Kelley, who did most of the
communication to the defense team about Ventura's findings, and later testified
as an expert, lacked sufficient knowledge about the results of Ventura's
forensic analysis. The sole focus of the counterclaim was on Vestige's breach
of its duty to adequately communicate its forensic findings to Mills to enable
him to plan his trial strategy in Starner's defense and, if Mills chose to
present forensic evidence at trial, to provide him with an expert who was
reasonably prepared to testify about the results of Vestige's forensic
analysis.
Vestige, Ltd. v. Mills, supra.
The Court
of Appeals noted that instead of relying on BCI’s assessment of the computer
evidence, Mills hired Vestige to determine what the prosecution could prove
from that evidence, to explain that to his defense team and to explain whether
BCI’s assessment of the evidence was accurate or could be challenged “through
cross-examination and/or independent expert testimony.” Vestige, Ltd. v. Mills, supra. It also noted that a
criminal
defense attorney's reliance on an independent expert requires that the expert
accurately and effectively communicate the results of its assessment to the
defense attorneys to enable them to exercise their professional judgment in
planning trial strategy. . . . Vestige's communication of its forensic results
to the defense team was a key element of the professional relationship between
Mills and Vestige.
The
contract between Mills and Vestige explicitly provided . . . that `Vestige Ltd.
will examine all available evidence in the case, provide an analysis of its
findings, and will be available to provide testimony in the manner.’ The
component of the contract that required Vestige to `provide an analysis of its
findings’ required that it communicate its findings to Mills and implicitly
required that it do so accurately and effectively.
Vestige, Ltd. v. Mills, supra.
It then found Mills’ counterclaim
only involved matters of common knowledge and experience, so expert testimony
was not required. Vestige, Ltd. v. Mills, supra.
The court noted that at the October 15 meeting, Vestige reported its results to
the defense team and they asked “specific questions” about the Evidence
Eliminator program.
Mills and other members of his defense team testified at the
civil trial about significant discrepancies between what Kelley explained to
them at the pretrial meeting and his testimony at Starner's criminal trial.
Mills presented evidence that there were three key areas of discrepancies, all
of which focused on the extent to which the prosecution could create an
inference that Starner had taken deliberate action to delete incriminating
evidence from his computers: whether the files had been deleted automatically
or manually; the specific computers from which files had been deleted; and the
content of the deleted files.
Vestige, Ltd. v. Mills, supra.
As to the
first issue, after Vestige told the defense team that Evidence Eliminator “had
the ability to delete files automatically and manually,” the team questioned
Vestige “at length” about whether the prosecution could prove the files were
deleted manually. Vestige, Ltd. v. Mills,
supra. According to them, Kelley told the defense
team that the files were “deleted by an automatic operation of the program”. Vestige, Ltd. v. Mills, supra.
“At
Starner's trial, . . . Kelley testified that Evidence Eliminator did not
automatically delete files from any of the computers but . . . was operated by
a person at the keyboard every time” it deleted files. Vestige, Ltd. v. Mills, supra. Mills pointed out that this meant his own
expert bolstered the State’s theory at trial. Vestige, Ltd. v. Mills, supra.
The
defense team also asked Kelley “which computers and drives had run” Evidence
Eliminator to delete files and, according to them, Kelley said “the program had
been run on only one computer seized from Starner's home, which was not the
computer in the kitchen.” Vestige,
Ltd. v. Mills, supra. One member of the team asked if it had been
run on a USB drive found in Starner’s kitchen and Kelley told them it had not. Vestige, Ltd. v. Mills, supra. “At trial, however, Kelley
testified Evidence Eliminator had deleted files on two computers, including the
one found in the kitchen, and that it had been used to delete files from the
USB drive.” Vestige, Ltd. v. Mills, supra.
Finally,
the defense team “repeatedly” asked Kelley
for confirmation that the prosecution would not be able to
prove that pictures or photographs had been deleted from Starner's computers.
According to Mills' witnesses, Kelly told them only one picture had been
deleted and the other files were text files. At Starner's criminal trial, however,
Kelley testified that `anything’ could have been in the files that were
deleted.
Vestige, Ltd. v. Mills, supra.
At the
civil trial, Mills testified that Kelley’s testimony “did more harm than good
to Starner’s defense.” Vestige, Ltd. v.
Mills, supra. He also said that if Vestige had “accurately
and effectively” informed him about the results of its forensic analysis “he
would not have called Kelley as an expert witness” and might “advised Starner
to enter into plea negotiations rather than going to trial.” Vestige, Ltd. v. Mills, supra.
The Court
of Appeals found for Mills, explaining that if the facts were construed in
favor
of Mills at the civil trial, a reasonable juror could
understand and conclude that Vestige breached its duty to Mills to accurately
and effectively communicate the results of its forensic analysis to assist him
in planning his trial strategy and to provide him with an expert witness who
was adequately informed about the results of the forensic analysis.
No expert testimony was required to explain the standard of
care owed by Vestige under these facts, because it was well within the common
understanding of a reasonable juror that the duty of a forensic expert to
communicate its findings to a client implies a duty to communicate those
findings in an accurate and effective manner. Because Mills presented evidence
to support his counterclaim and no expert testimony was required, the trial
court erred in granting a directed verdict against him.
Vestige, Ltd. v. Mills, supra.
The Court
of Appeals therefore reversed the judgment for Vestige and remanded the case
for a new trial. Vestige, Ltd. v. Mills, supra.
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