Take Away: Though this is a criminal case, the Ohio Supreme Court's ruling in State v. Rivas, 121 Ohio St. 3d 469 (March 31, 2009), is instructive to civil cases. The Court's approach in Rivas confirms that discovery of electronically-stored information is inherently no different than discovery of hard copy documents and things. Also, a party's mere assertion that the opponent falsified, altered or destroyed evidence typically is insufficient to warrant further discovery. Here, the defendant's contention that the prosecution had falsified the transcript of information stored on a hard drive, without more, was not sufficient for the Court to order production of a mirror image of the hard drive to the defendant. As stated by the Court, "[t ]he presumption should be that counsel comply with our rules of discovery." Presuming a lack of compliance based on one party's mere speculation "sends the wrong message to the legal community and does not represent the law of this state."  

In the criminal case State v. Rivas, 121 Ohio St. 3d 469 (March 31, 2009), the defendant (Rivas) engaged in an online sexual "chat" with an officer posing as a minor. Rivas claimed that the prosecution's evidence against him had been altered or falsified. He filed a motion to compel production of a mirror image of the computer hard drive used by the officer to communicate with him. Rivas argued that he needed to examine the hard drive to prove that the state's evidence was faulty.

In discovery in Ohio criminal cases, the accused is permitted to inspect tangible evidence that is material to the preparation of the accused's defense. See Ohio R. Crim. P. 16(B)(l)(c). (Read the Rule here). In Rivas, the prosecution provided Rivas with a transcript of the chat-room conversations between the officer and Rivas, together with a CD containing an electronic copy of the online communications. The prosecution declined Rivas' request for the mirror image of the hard drive, in part because the hard drive contained information from other investigations not related to Rivas.

The trial court ruled that the defendant was not entitled to a mirror image of the hard drive. At trial, the defendant was found guilty of several criminal offenses. The defendant appealed and convinced the appellate court that he was entitled to the mirror image he had requested.

On appeal to the Ohio Supreme Court, the Court ruled in a 4-3 decision that: (l) the prosecution complied with its duty to provide a transcript of the evidence from the hard drive; and importantly, (2) the defendant failed to present sufficient evidence of a "particularized need" (i.e., that the transcript was false, incomplete, adulterated, or spoliated) to justify ordering the prosecution to produce an image of the hard drive.

The Court acknowledged that the specific issue presented by this case has not been addressed by the Court previously. As underpinnings for its decision, the Court looked to state and federal court rulings holding that when there is a dispute over the materiality of evidence sought from the state by a criminal defendant, "it is the accused who bears the initial burden of establishing a prima facie case of materiality before Crim. R. 16(B) requires the state to turn over tangible evidence."

While the scope of discovery in criminal cases differs from that in civil cases, the Court's analysis in Rivas of the deficiencies in the defendant's arguments is relevant to EDiscovery issues in civil cases. In Rivas, the Court concluded that the defendant's allegation that an officer used the computer after his arrest and that rebooting the computer changed data in the files used to start up the computer system, was not sufficient to order the prosecution to comply with the defendant's request. The defendant failed to present evidence that booting a computer would alter the content of the e-mail or files at issue in this case.

In addition, the defendant lacked any evidence that the transcript provided by the prosecution was inaccurate, incomplete or falsified. Since the burden of proof falls on the party alleging spoliation, the mere speculation of the defendant's expert witness that some falsification "may" have occurred was not sufficient for the Court to order production of the mirror image to the defendant. The Court noted that the defendant's destruction or discarding of his own computer hard drive eliminated one viable method for substantiating his claim that the prosecution's transcript and CDs produced in discovery were inaccurate and/or fabricated.

Notably, the Supreme Court faulted the appellate court for "mak[ing] the wrong presumption about discovery." According to the Court:

The presumption should be that counsel comply with our rules of discovery. Presuming the state's lack of compliance with discovery based on an assertion by an opposing party, and ordering the state to verify its discovery on such an assertion, sends the wrong message to the legal community and does not represent the law of this state.

Justice O'Donnell wrote the majority opinion, with Justices Lundberg Stratton, O'Connor and Lanzinger concurring.

A lively dissent was written by Justice Cupp, with Chief Justice Moyer and Justice Pfeifer joining. The three dissenting Justices disagreed with the majority's view that Crim. R. 16(B)(l)(c) required Rivas to make a threshold showing of the challenged evidence's unreliability for the Court to allow the defendant access to the computer hard drive. The dissenters noted that certain safeguards could have been implemented to prevent the defendant from accessing data on the hard drive pertaining to other investigations, such as only pennitting the defendant to review the hard drive in the presence of, and under the control of, the local law enforcement authorities. Of course, safeguards of this nature can be used in civil cases too, if warranted by the situation.

We will monitor whether future litigants rely upon the Rivas decision in civil cases involving E-Discovery issues.

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