Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

inspection of a non-party former supervisor’s personal hard drive. Specifically, the defendant
argued that the subpoena was overbroad, unduly burdensome and not calculated to lead to the
discovery of admissible evidence. Before laying out its analysis, the court noted the standard for
quashing a Rule 45 subpoena, requiring consideration of relevance, the requesting party’s need,
and the potential hardships suffered by the party subject to the subpoena. Addressing the
defendant’s objections, the court found that the non-party’s connection to the plaintiff offered the
possibility of discovering some relevant evidence on his personal hard drive, especially in an age
“where it is increasingly common for work to be conducted outside the office through the use of
personal electronic devices.” Furthermore, the court found that the plaintiff’s willingness to
negotiate search terms and bear the cost of a search mitigated any undue burden. Based on these
facts, the court concluded that the plaintiff was entitled to search the non-party’s personal hard
drive through an expert with the proposed search terms.
� Kinetic Concepts, Inc. v. ConvaTec Inc., 2010 WL 1912245 (M.D.N.C. May 12, 2010). In this
patent infringement litigation, the defendants filed a motion to compel alleging the plaintiffs failed to
respond to several production requests and deficiently produced some documents. The plaintiffs
argued that they did not withhold or refuse to produce the relevant, responsive and non-privileged
documents sought. Reviewing the parties’ communications, the court determined that the plaintiffs
often responded to the defendants’ requests with boilerplate objections including the unilateral
claim that all relevant documents were produced pursuant to the requests. The plaintiffs also
delayed their responses, agreed to comply with requests at an unstated future time and abruptly
amended their reply, leading to the defendants’ confusion and suspicion. Citing the plaintiffs’
“pattern of apparently calculated ambiguity,” the court ordered the plaintiffs to produce all
responsive documents, except for the properly recorded privileged documents determined on a
good faith basis. The court further ordered the plaintiffs to make the original versions of certain
documents available for inspection.
� High Voltage Beverages, LLC. v. Coca-Cola Co., 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009).
In this trademark infringement litigation, the plaintiff filed a motion to compel 17 gigabytes of data,
which amounted to about 1.5 million pages. The defendant did not object to producing the
documents but argued that a review was unnecessary as it believed every document related to the
merits of the underlying action had already been produced. Applying Fed.R.Civ.P. 26(b)(2)(C)’s
proportionality standard, the court determined the plaintiff’s request would be unreasonably
duplicative of earlier efforts and outweighed its likely benefit because the plaintiff had ample
opportunity to obtain the information, which in all likelihood, it had already obtained. The court
further held that the defendant must extend to the plaintiff’s counsel the opportunity to search data
on the defendant’s computers at the defendant’s place of business.
� Eckhardt v. Bank of America Corp., 2008 WL 1995310 (W.D.N.C. May 6, 2008). In this disability
discrimination litigation, the plaintiff filed a motion for discovery sanctions and additional discovery.
The plaintiff alleged the defendant did not fully comply with a previous court order requiring the
defendant to identify the computers used by decision makers in the plaintiff’s employment
termination. The defendant claimed all documents of known locations were produced and the
relevancy of the documents of unknown locations had not been established. Finding relevant
documents were not produced, the court allowed the plaintiff to seek documents from the
defendant’s backup tapes of electronically stored material. However, the court did not find that the
defendant acted in bad faith, but rather commented that the discovery problem “highlights the
changing face of discovery in an electronic world.” The court ordered the defendant to pay costs
associated with making its current and former employee deponents available.
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