2008-01-05 Massachusetts Law Does Not Recognize Tort of Conversion of Computer Data

In a December 2007 decision, In re TJX Companies Retail Sec. Breach Litigation --- F.Supp.2d ----, 2007 WL 4404166 (D.Mass. 2007) the Court ruled that a claim for conversion based on intangible computerized credit cardholder and account data was not cognizable in Massachusetts.

The TJX Court did note the contrast with the New York Court of Appeals decision in Thyroff v. Nationwide Mutual Insurance Co., 8 N.Y.3d 283, 832 N.Y.S.2d 873, 864 N.E.2d 1272 (N.Y.2007) (Blogged here on October 6, 2007):

The question certified to the New York Court of Appeals: "Is a claim for the conversion of electronic data cognizable under New York law?" Thyroff, 460 F.3d at 408.

The answer: On March 22, 2007, the New York Court of Appeals answered the certified question in the affirmative. See Thyroff, 8 N.Y.3d at 293, 832 N.Y.S.2d 873, 864 N.E.2d 1272.

Straining credulity (imo) the TJX Court declined to follow Thyroff, holding that Massachussetts law does not recognize the tort of conversion of computer data. TJX, 2007 WL 4404166 at *2. Further amplifying the strain is the Court's stretch in finding that the New York Court of Appeals landmark decision does not apply to "any" digital data, but only where the digital data was "indistinguishable" from printed documents. Id. That was not the precise ruling in Thyroff; it appears that the TJX court incorporated what appears to be at best dicta from Thyroff into the New York Court of Appelas holding.

The Court's use of the word "indistinguishable" is also both intriguing and troubling. First, a contextually complete reading of the Thyroff does not necessarily lead one read in such a limitation to the tort of digital data conversion. Second, does the TJX Court provide a carve-out or not?

One might imagine the evidentiary issues arising in Massachusetts from parties offering arguments either supporting or challenging computer generated evidence as "indistinguishable" from printed documents.

Er, um, well, we may have some problems down the line in Massachussetts. For example, how does the "indistinguishable from printed documents" test apply to metadata associated with the data formatted for printing?