Monday, July 15, 2013

The Computer Forensic Company, Evidence Eliminator and the Counterclaim

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. 

No comments: