Defendants must produce computers in skinny-dipping case

A judge has ordered the defendants in a lawsuit stemming from a skinny-dipping outing on Grindstone Island to surrender the hard drives on their personal computers for inspection.

State Supreme Court Judge Joseph D. McGuire wants to determine whether e-mail and other records on the computers could include information pertinent to the case of three young women who claim they were assaulted and falsely imprisoned during an Aug. 20, 2006, incident at Potter's Beach.

Judge McGuire stopped short of ruling that the lawsuit itself is "frivolous," as defense attorney Lee Alcott, Syracuse, contends. Mr. Alcott claims a search of his clients' computers is an invasion of their privacy and represents a "fishing expedition" intended to further a "vendetta" against the defendants.

Heather E. Henderson, Lisa M. Onderdonk, and Robert E. and Julie L. Purcell, on behalf of their daughter, Maeve E., all of the Syracuse area, filed suit in October 2006 against eight Clayton-area residents claiming, in part, the Clayton group stole their clothes as they swam nude off Potter's Beach.

The three girls claimed that while they were in the water, three of the defendants, Sarah Bazinet, Abby Carnegie and Erica Gamble, shouted obscenities from the shore. When the girls attempted to retrieve their belongings, they claim Miss Onderdonk was "pummeled" and Miss Henderson was restrained while trying to help her friend.

The alleged victims' attorney, Stephen W. Gebo, Watertown, claimed that some of the defendants gave conflicting versions of the events in depositions and argued that electronic correspondence, including e-mails and text messages, sent between the defendants could be used to resolve discrepancies.

Mr. Alcott, who is not charging his clients for his representation, countered that some of the electronic messages are protected by attorney-client privilege and that much of the information requested has nothing to do with the legal battle. He argued that its retrieval would be "unnecessarily intrusive, burdensome and irrelevant."

In court documents filed Friday at the Jefferson County clerk's office, Judge McGuire wrote that it is irrelevant to the court whether the retrieval is burdensome if it can be useful in resolving the litigation. He said that given the conflicting testimony, the communications may produce information about additional potential witnesses or for other legitimate reasons.

He ruled that the defendants who have personal computers must make the devices' hard drives available for "cloning" by a computer forensic expert who will be selected by the court. The copying of the drives will occur at a location selected by the defendants with the work paid for by the plaintiffs.

The cloned drives then will be turned over to the court and kept with it until the end of the litigation. Attorneys for each side then will meet with the court to determine what retrieved information can be disclosed. He allowed the defendants to apply for a protective order within five days of the meeting if there is information the defendants object to being disclosed.

The ruling does not apply to Miss Gamble because she already has provided a hard copy of materials on her computer, according to court documents.

Judge McGuire also denied a motion brought by Mr. Alcott to have the plaintiffs' claims declared frivolous and to have sanctions awarded to the defendants. Mr. Alcott claimed in court papers that Mr. Purcell, who also is an attorney, initiated the action "for the purpose of harassing and inflicting harm" on the defendants and contends the lawsuit is a "costly vendetta and waste of judicial resources."

The judge wrote in his decision that Mr. Alcott "has made a strong argument for a finding of frivolous conduct, albeit being based on questionable parental motives," but that it would be "premature" to make that determination at this stage of the litigation. He wrote that as more information becomes available, he would allow Mr. Alcott to renew his motion for a finding of frivolous conduct and sanctions.

A second lawsuit was filed in connection with the Grindstone Island incident. Mrs. Purcell filed suit against Chief U.S. Magistrate Judge Lisa M. Smith, South Salem, claiming the judge "sucker punched" her in the face Aug. 21, 2006, when she confronted Judge Smith with allegations that the judge's nephew had witnessed the previous night's incident. That case also is pending in Supreme Court.