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A benefit of having e-mails produced in electronic form is that it permits a litigator to follow the “information trail” contained in the embedded “header” of an e-mail that would otherwise be unavailable from the printed copy of the e-mail. For example, to view header information in Microsoft Outlook, a user clicks on View and then selects Options. See Mark A. Berman and Aaron Zerykier, “Forensic Inspection of Computer Hard Drives Under New York Law,” Sept. 1, 2005, N.Y.L.J., and “Are Private E-Mails Really Private?,” N.Y.L.J., Oct. 7, 2005. This “header” information may be used to identify the Internet account from which the e-mail was sent because the header often includes the Internet protocol (IP) address assigned to the user who sent the e-mail. Determining the identity of the unknown or anonymous person who sent a specific e-mail can be critical in various types of litigation, including defamation and tortious interference cases, as well as in cases in which a person is utilizing an e-mail address “confusingly” similar to a company’s address in order to, inter alia, commit fraud or to unfairly compete. Internet service providers (ISPs), such as America Online, Verizon DSL or Road Runner, utilize certain ranges of IP addresses. The ISP assigns a specific IP address to each service subscriber, usually on a session-by-session basis, when a subscriber connects to the Internet. A discussion of IP addresses and their history can be found in the decision entitled Name.Space Inc. v. Network Solutions Inc. , 202 F.3d 573 (2d Cir. 2000). The specific IP address, in addition to the date and time the e-mail was sent, may be used to identify the owner of the account from which the e-mail was sent. In Matter of the Application of TD Waterhouse Group Inc. , No. 1005020/05 (New York Co., N.Y., Sup. Ct. Feb. 14, 2005), for example, TD Waterhouse, a brokerage company, was granted preaction disclosure from Time Warner Cable Inc., pursuant to New York Civil Practice Law and Rules � 3102(c), to determine the owner of two e-mail addresses so TD Waterhouse would be able to assert an action for fraud, trademark infringement, false designation of origin and unfair competition, among other claims. In TD Waterhouse , the e-mails in question were apparently part of a scam to utilize the brokerage’s name in soliciting bank cashing services. The fraudulent header, however, provided no information that would permit TD Water- house to identify its origination, and the only identifying feature of the e-mail was that responses were to be sent to e-mail accounts that ended with “@austin.rr.com.” A forensic investigator employed by TD Waterhouse used the services of a Web site called SamSpade.org to determine that the ISP that provided the austin.rr.com e-mail addresses was Road Runner, which is owned and operated by Time Warner Cable. The court granted TD Waterhouse’s � 3102(c) application and directed that Time Warner Cable provide the identity of the people and/or entities who were registered to use or had access to the inbox for the subject e-mail accounts; copies of any e-mails that contained or referred to the trade name TD Waterhouse; records reflecting traffic in the offending e-mail accounts; the content and source of replies to the offending e-mails; the nature and identity of any information, including any header information or links to other information sites that were contained in the offending e-mails; and such other information that may be related to the identity of any person using the subject e-mails. Anonymous messages IP address information embedded in e-mails may also reveal the identity of the author of an allegedly defamatory “anonymous” e-mail. In Schubert v. American Express Co ., 4/18/01 N.Y.L.J. 18 (col. 2) (New York Co., N.Y., Sup. Ct. March 30, 2001), the petitioner sought preaction discovery in order to bring a defamation action. The allegedly defamatory e-mail was sent from a Yahoo.com address. The petitioner had previously been granted discovery against Mindspring, the ISP the sender used to send the e-mail.
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