Hacking the Plaintiff's E-mail warrants the Sanction of Striking the Defendant's Answer


Litigation can be brutal and some may try to win at any cost. In litigation, certain documentation created by Plaintiff and/or Plaintiff's attorney is for the purpose of litigation. Such records may be subject to attorney-client privilege. As the Court here notes, "privileged communication between plaintiffs' principal and their attorney and materials prepared for litigation that are the attorney's work product (CPLR 3101[b], [c], and [d]" may be kept from the other side, the parties being sued.

E-mail hacking and forwarding are at issue in this case. Interesting is Plaintiff's allegation "that on October 26, 2016, the Chairman and Managing Director of plaintiff Mediaworks, Ltd., Rajendra Karnik, discovered that all the emails in his account, raj@channelguide.net.in (Karnik Account), were forwarded to anonymous331100@gmail.com (Anonymous Account) without his knowledge or consent." The Plaintiff found, through subpoena, that the account was created right before the litigation and sent a ton of e-mails from the Plaintiff's attorney to specific accounts, later accessed by Defendants: "the Anonymous account sent 317 emails to its only recipient, manish@a2zmediausa.com, between July 16, 2014 and May 22, 2015. References to plaintiffs' attorney, Russell Bogart's 3 email accounts to the Karnik Account appeared over 2000 times. These emails from plaintiffs' attorney to the Karnik Account were forwarded to the Anonymous Account, which, from February 11 to March 25, 2015, sent 96 emails to manish@a2zmediausa.com." Plaintiff's attorney claims that the Plaintiff was the unsuspecting victim of hacking or e-mail phishing.

The Court agrees with Plaintiff: "The privileged communications were apparently shared with defendants Maninder Singh and Harwinder Singh as shown in their discovery response material which included privileged work product and other documents between him and Mr. Karnik" In so deciding to strike the Defendant's answer, the Court notes that "plaintiffs' computer forensics expert showed that Vasisht received emails from the Karnik account through two other email accounts that were set up specifically to forward the Karnik account emails to Vasisht. This was done without Karnik's consent, authorization or knowledge. The timing of this hacking — at the commencement of this case — cannot be overlooked." Indeed, the Court holds that "There are no issues raised or counterarguments made as to whether the 2000-plus hacked emails were indeed protected material."

Although an extreme sanction, the Court finds it appropriate here. The hacking of the e-mails or coincidental timing of the hacking is enough for the Court to grant Plaintiff's request for sanctions.

The case is Iris Mediaworks, LTD v. Vasisht, 2017 NY Slip Op 31145 (NY Sup. Ct. 2017). The Law Offices of Cory H. Morris handles a variety of litigation matters. Whether an injury or a complex litigation, Call the Law Offices of Cory H. Morris, 631-450-2515.

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