Electronic Discovery Law

Posted at 8:39 AM on August 25, 2006 by K&L Gates

Second Circuit Certifies Question to N.Y. Court of Appeals: Can electronic data, computer programs, or electronic data saved in computer programs support a claim for conversion?

Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400 (2d Cir. 2006)

The plaintiff in this case is an insurance agent formerly associated with the defendant insurance company. Plaintiff and defendant had executed an Agent’s Agreement, and defendant had required that plaintiff lease an agency office-automation system (“AOA”), including hardware and software, from defendant. During the 21 years he was an agent of defendant, plaintiff’s office operations were very much dependent on the AOA. Plaintiff and his staff entered business data and information onto the hard drives of the AOA system on a daily basis, and defendant then uploaded that information on a nightly basis from plaintiff’s computers onto defendant’s computers. In the process, defendant also uploaded plaintiff’s personal information.

Defendant cancelled the Agent’s Agreement, and subsequently denied plaintiff access to the AOA and reclaimed the AOA. In the process, defendant took various software programs (including Microsoft Word, PowerPoint, Excel, etc.) and various files, including personal email, documents, and other data that plaintiff stored on the system. Defendant also seized data that plaintiff had compiled on customers that plaintiff needed to retain his customers’ business once his relationship with defendant ended.

Thereafter, plaintiff sued for conversion, alleging that neither the AOA lease agreement nor the Agent’s Agreement granted defendant the right to take plaintiff’s personal or business information from the computers. Defendant’s seizure of plaintiff’s electronic information – both business records and personal information – formed the basis of plaintiff’s conversion claim.

The Second Circuit concluded that the trial court erred when it dismissed the conversion claim under FRCP 12(b)(6), but noted that New York law was unsettled with respect to whether a conversion claim may apply to electronic data. Since the issue was dispositive in resolving the case, the court certified to the New York Court of Appeals the question of whether electronic data, computer programs, or electronic data saved in computer programs can support a claim for conversion under New York law.

Trackbacks (0) Links to blogs that reference this article Trackback URL

Comments (0) Read through and enter the discussion with the form at the end

This blog/Web site is made available by the contributing lawyers or law firm publisher solely for educational purposes to provide general information about general legal principles and not to provide specific legal advice applicable to any particular circumstance. By using this blog/Web site, you understand that there is no attorney client relationship intended or formed between you and the blog/Web site publisher or any contributing lawyer. The blog/Web site should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

K&L Gates includes lawyers practicing out of more than 40 fully integrated offices located in North America, Europe, Asia, South America, and the Middle East, and represents numerous GLOBAL 500, FORTUNE 100, and FTSE 100 corporations, in addition to growth and middle market companies, entrepreneurs, capital market participants and public sector entities. For more information about K&L Gates or its locations and registrations, visit www.klgates.com.

Portions of this Web site may contain Attorney Advertising under the rules of some states. Prior results do not guarantee a similar outcome.

e-Discovery Analysis & Technology group at K&L Gates, offering services related to ediscovery, review of electronic documents, electronic discovery and electronic evidence discovery.
K&L Gates LLP
925 Fourth Avenue, Suite 2900, Seattle, Washington 98104-1158
p. 206.623.7580, f. 206.623.7022