Phil Cannella Lawsuit, Phillip Cannella Lawsuit, Phil Cannella Reviews, Phil Cannella Complaints
In part 1 of this article we took a brief look at what spoliation of electronic evidence is and the importance of preserving digital information when engaged in a lawsuit on either side.
In the case of Phil Cannella and the lawsuit he was involved in with one of his adversaries who was trying to take him out of business, the matter at hand was the fact that a question under litigation was in dispute between the plaintiff and the defendant and in order to determine the truth of the statements a forensic examination was ordered by the judge on the case. This would have affirmatively proved whether Phil Cannella was telling the truth or if the defendant was.
As Phil Cannella wields the sword of truth the forensic examination was theoretically not necessary for one cannot wield that sword while still spewing lies unless the sword of truth is capable of being bent or worse is a sword of lies essentially. Phil Cannella pressed on in order to see justice being served in this case for the matter under dispute was intrinsic to the case. What it essentially boiled down to was a statement by the defendant that she had never received electronic service yet Phil’s attorneys claimed they had done so on multiple occasions and even provided a fairly strong case to support their statements.
As experts point out, discovery in a lawsuit today, in the electronic age, is much different to what it was in days past:
“The realm of discovery has changed vastly during the past twenty years. A key change is that today information is stored, hidden, and even “deleted” from computers as well as many other varieties of electronic media.
“Computers are no longer just tools for engineers and scientists. For many people, computers are now a primary mode of communication. Network news reported an instance in which a teenage girl, who had witnessed a friend killed and wanted to be with her friends to grieve, went straight to her computer to “instant message” them.
“Even criminals involved in non-computer activities, such as drug running, fraud or larceny, use computers and leave electronic evidence–evidence that may be in the form of e-mail and other forms of electronic communication.
“Discovery of such electronic evidence poses challenges that are different from those of discovery of paper and other tangible documents, but such new techniques have not been incorporated into all law school curricula. In this article we discuss the issues and techniques involved in assuring that electronic evidence is properly protected from loss or damage.
“The destruction, or spoliation, of electronic evidence can occur as the result of a variety of seemingly innocuous events. Being armed with the knowledge necessary to avoid such spoliation can mean the difference between triumph and defeat in the courtroom, even when, upon first assessment, a case may not appear to involve the use of computers.”
There are even quite inadvertent ways of computer information being wiped out which the everyday computer user may not realize and when you are in the thick of litigation, you do not want to be in the position of being found guilty of spoliation for it carries some very heavy penalties indeed. One such example is the mere action of turning a computer on and off. That action can result in hundreds of files being overwritten. Arguing that “nothing was deleted” won’t hold water in that situation.
This is further amplified in a great article that sets the stage very precisely for “inadvertent” spoliation.
“Even the most careful of computer users occasionally delete something they should not have deleted or neglect to do a backup of important files. Computer operating systems hide many internal operations from the user and what a user sees is not necessarily all that is going on inside the system. Since merely starting a computer changes every drive it has access to, anyone accessing a computer can unintentionally cause changes and not be aware of it.
“For example, when the Microsoft Windows® operating system starts during the boot-up process, it writes to every disk on the system and changes approximately 160 files. Many dates are changed in this start up process, and ‘who knew what, when’ evidence may be unintentionally destroyed.”
“In one case investigated by the authors, an attorney had custody of a client’s computers. Information technology staff from the opposing counsel’s office insisted on knowing the size of the plaintiff’s drives. An obliging legal assistant booted the systems and reported the disk sizes. When the drive was subjected to a proper forensic investigation, 192 files had been changed and the “last modified” dates corresponded to the time the assistant started the machines. For more detailed information on a proper forensic examination see Demystifying Computer Forensics.
One particular legal case is most pertinent here: “In the case of R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486, the need to protect the content on drives suspected of containing evidence was recognized by the parties who stipulated that the computers would not be turned on until the computer forensics expert examined them. Violation of this stipulation resulted in the Court’s finding of evidence spoliation and dismissal of the case.” http://www.electronicevidenceretrieval.com/preserving_protecting_evidence.htm
As Phil Cannella pressed for fair justice and the judge ordered a forensic examination, as explained above, the defendant on the case had utilized two different forms of wiping software followed by a reload of the Windows operating system. These various actions effectively wiped almost all traces of what was done on the computer, except for a few little facts. There were traces of the wiping software that remained on the computer. And there were traces of other relevant data that remained in fragments on the computers.
As a result the judge presiding over the case saw through the lies and Phil Cannella’s sword of truth pierced through the lies like a knife through butter. The defendant was found guilty of failing to preserve evidence that was in her custody and control and she was ordered to pay a pretty large sum for the lawsuit could not continue as the evidence needed, if it had existed, had been wiped.
As Phil Cannella often says, crime doesn’t pay. And it did not pay here. The best path in life is always the most righteous path. It may at times seem more difficult to follow that route instead of taking what may seem like the faster or cheaper yet more dishonest path, but it is never worth it. This is one of the many principles behind Phil Cannella’s Sword of Truth that he wields in an effort to bring more believers into the fold even when so many seem to be doubters.