Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Bank of Amer. Corp. v. SR Int’l Bus. Ins. Co., 2006 WL 3093174 (N.C. Super. Nov. 1, 2006).
The defendants sought deleted e-mails from 400 backup tapes of Marsh, Inc., a broker of the
plaintiff and non-party to the litigation. Marsh previously produced over 50,000 e-mail documents
for the litigation but the defendants argued all relevant e-mails may not have been produced.
Marsh argued, as a non-party, the defendant’s request would impose an undue burden and
expense. Marsh’s expert from Kroll Ontrack stated such recovery and organization could cost as
much as $1.4 million. The defendants argued Marsh may have only produced e-mails responsive
to the subpoena and none that related to the claims and defenses of the case. The court denied
the defendants’ motion because “such a low level of marginal utility does not justify imposing a
heavy burden on a nonparty … nonparties should not be penalized for having a backup system by
making them produce inaccessible backup data without good cause.” Additionally, the court found
no evidence that Marsh had failed to produce responsive documents or that the requested e-mails
would show anything contrary to the e-mails already produced. NOTE: The court listed this as the
companion case to Analog Devices Inc. v. Michalski, 2006 WL 3287382 (N.C. Super. Nov. 1,
2006), which was filed concurrently by the court.
� Warner Bros. Records, Inc. v. Souther, 2006 WL 1549689 (W.D.N.C. June 1, 2006). In a
copyright infringement case, the plaintiffs accused the defendant of unlawfully downloading and
distributing copyrighted materials through a peer-to-peer, online media distribution system. After
the defendant failed to provide electronic copies of her computer’s desktop and registry files in
response to a production request, the court ordered the defendant to bring the computer to an
evidentiary hearing. At the hearing, the court permitted the plaintiff’s forensic technician to make a
mirror image of the defendant’s computer in the court’s chambers. Issuing a protective order, the
court restricted the plaintiffs from using or disclosing any electronic information obtained from the
computer that was unrelated to the case. The court also reserved the right to issue Rule 37
sanctions against the defendant after having the opportunity to consider the defendant’s computer
skills and the reasonableness of her efforts to comply with discovery in light of them.
� Arndt v. First Union Nat’l Bank, 613 S.E.2d 274 (N.C. Ct. App. 2005). In a dispute involving a
contract made between the defendants and the plaintiff, the jury awarded the plaintiff over
$830,000 in damages, relying in part on a spoliation instruction. Although the plaintiff had
requested various e-mails and profit and loss statements relating to the allegations, the defendant
failed to preserve and produce these documents. As a result, the trial court had instructed the jury
that, “[e]vidence has been received that tends to show that certain profit and loss statements and
E-mails were in the exclusive possession of the defendant…and, [sic] have not been produced for
inspection….From this, you may infer, though you are not compelled to do so, that the profit and
loss statements and the E-mails would be damaging to the defendant.” On appeal, the defendants
argued, inter alia, that the instruction was unfairly prejudicial. The appellate court noted that
testimony from one of the defendants’ employees indicated the defendants were on notice early on
of the plaintiff’s intent to sue but failed to preserve the plaintiff’s e-mails or hard drive. The
employee further testified that no effort was made to save the hard drive even after receiving a
letter from the plaintiff’s counsel about the case. Based on this evidence, the appellate court
determined the trial court did not err in giving the spoliation instruction.
� Evans v. Evans, 610 S.E.2d 264 (N.C. Ct. App. 2005). In a domestic relations dispute, the
defendant contended the trial court erred in admitting sexually explicit e-mails. The defendant
argued the e-mails were illegally intercepted pursuant to a federal statute prohibiting the disclosure
or use of any electronic communication that was intercepted in violation of the Electronic
Communications Privacy Act (ECPA). The court rejected her argument, noting the ECPA
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