Hacking Privileged Communications Warrants Striking Answer

ASchlossberg
December 1, 2017

The plaintiffs in Iris Mediaworks, Ltd v. Vasisht, NYLJ 1202791048431, at *1 (Sup. Ct. N.Y. Co. 2017) made a motion to strike the defendant’s Answer based on allegations that defendant “stole privileged and confidential e-mails.” Plaintiffs alleged that their Chairman and Managing Director discovered that all of the emails in his account had been forwarded to an anonymous Gmail account without his knowledge or consent. In support of the motion, plaintiffs submitted the affidavit of a computer forensics consultant. According to plaintiffs’ expert, the anonymous Gmail account first received emails from plaintiffs’ account on July 10, 2014 and last on October 27, 2016. During that period, the anonymous Gmail account sent 317 emails to only one recipient, one of defendant’s email accounts. In these emails, references to plaintiffs’ attorney’s email account appear over 2,000 times. Plaintiffs asserted that the emails “were privileged attorney-client communications related to this case that included litigation strategies and attorney work product.” Plaintiffs further asserted that the fact that these privileged communications were included in defendant’s discovery response materials was further proof that these communications were converted by defendant. Defendant opposed the motion by submitting an affidavit generally denying knowledge of the anonymous Gmail account and claimed that if he had received those emails, they would have been sent to his junk folder which is deleted monthly. Finding defendant’s denial “half-hearted,” while noting that defendant failed to dispute or contradict any of plaintiffs’ expert’s findings, Judge Chan granted plaintiff’s motion. In doing so, Judge Chan noted that although “striking a defendant’s answer is an extreme sanction, it is warranted here as hacking plaintiff’s email to obtain information during litigation without going through proper discovery channels is an egregious act and sidesteps discovery procedures” displaying a disregard for the judicial process.

(internal citations omitted)

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

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ASchlossberg

Managing Member at The Law Office of Aaron M. Schlossberg, P.C.

Aaron Schlossberg focuses on complex commercial and insurance coverage matters involving corporate clients, entrepreneurs and individual policyholders. Mr. Schlossberg drafts and negotiates high-level contract documents and appears frequently in state and federal courts throughout New York State. Mr. Schlossberg earned his Bachelor of Arts Degree in English from The Johns Hopkins University and his Juris Doctorate Degree from the George Washington University Law School. Mr. Schlossberg gained invaluable insight during his post-graduate judicial clerkship and significant experience as an associate with two midtown Manhattan law firms prior to founding the Law Office of Aaron M. Schlossberg, P.C. in June 2012. Mr. Schlossberg is a published author and a seasoned presenter. He is fluent in Spanish, conversational in French and has basic knowledge of Mandarin Chinese and Hebrew. Mr. Schlossberg is a member of the New York State Bar Association and is admitted to the following courts: New York State, Eastern and Southern Districts of New York, United States Court of Appeals for the Second Circuit.