Electronic Discovery Law

Wild v. Alster, et al., 377 F.Supp.2d 186 (D.D.C. 2005)

Susan Wild ("Wild") sued Dr. Tina Alster ("Alster") for malpractice in connection with laser surgery performed by Alster on Wild's face. Alster prevailed at trial, and Wild sought a new trial alleging error in jury instructions and prejudice from discovery and evidentiary rulings. One basis for the alleged prejudice was the court's decision not to allow expert examination of Alster's computer to determine whether it contained dates indicating when photographs contained therein were taken.

Wild sought to discover the dates when her photographs were originally taken in order to establish that Alster had altered the photographs (which were used by defendants in asserting a "self-excoriation" defense) upon learning of the impending malpractice action. However, evidence indicates that such dates were not actually retrievable and the additional discovery was requested well after the discovery deadline had passed.

Wild asserted that Michael Stokes, Alster's computer consultant, testified that the photographs could be printed "as of the present time with the dates they were taken." However, examination of testimony transcripts indicates that the date a picture was taken would only be available if the photograph had been fed to the computer via a camera. If it had been imported (such as from a CD), the date would reflect when the importation occurred rather than when the picture had been taken.

Original photograph data had been lost during a conversion of Alster's computer system, but eleven pictures of Wild had been recovered from backup tapes via a data recovery service (the tapes had proven otherwise unreadable) and copied onto CD. The data had then been imported from CD onto defendant's computer. Thus,the only date available was that of importation rather than the date the photographs were actually taken. This date could not be helpful in supporting Wild's claim that the photographs had been altered.

The court found that even if the dates sought could actually be retrieved via an expert examining the hard drive, there was no abuse of discretion in not allowing it given the untimely request. Plaintiffs made the request over a year and a half after the close of discovery and allowing examination would have caused further delay. Any prejudice would be rectified by the jury being able to weigh the credibility of testimony regarding whether the photographs had been altered. The motion for a new trial was denied.