Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Morris v. Metals USA, 2011 WL 94559 (D.S.C. Jan. 11, 2011). In this personal injury litigation, the
plaintiff moved for sanctions including the exclusion of a witness and videotape from evidence.
Alleging a “trial by ambush,” the plaintiff argued the defendant failed to disclose the identity of a
witness (an investigator) and corresponding surveillance videotape until six months after receiving
the interrogatories and requests for production, and roughly one week prior to the discovery
deadline. The defendant argued production was not required as it intended to use the evidence
solely for impeachment purposes. Analyzing the evidence, the court found the tape could also
serve a substantive purpose as the video showed the plaintiff performing normal daily activities and
might contradict or diminish the plaintiff’s quality of life claims. Despite a lack of bad faith, the
defendant’s violation of Fed.R.Civ.P. 26(a) and (e) was “not substantially justified nor harmless”;
thus, the court prohibited the use of the investigator as a witness and the videotape as evidence at
trial, but declined to impose further sanctions.
� Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008). In this case, the plaintiff, an enemy
combatant in military custody, requested the court impose a preservation order to preserve
documents related to his detention and determine if spoliation occurred. The plaintiff claimed the
government destroyed relevant evidence, did not have a preservation policy and that a
preservation order was necessary to prevent further evidence destruction. The defendants claimed
they had issued several preservation directives calling for the retention of evidence pertaining to
the plaintiff and that the loss or destruction of certain records was inadvertent. Finding the
defendants’ efforts to be in good faith, the court determined the plaintiff failed to demonstrate that
there was significant risk relevant evidence would be destroyed absent a preservation order,
thereby denying the plaintiff’s motion.
� Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008). In this
breach of contract, inter alia, litigation, the plaintiffs claimed the former employee defendant stole
confidential information and used it to expand the business of his current employer. The plaintiff
thus sought production of the defendants’ business and personal computers for forensic inspection,
alleging the e-mails produced by the defendants were not accurate copies. The plaintiffs also
argued that electronic documents were modified after the defendants were put on notice of
litigation, noting that the defendants did not make any preservation efforts. Finding forensic
analysis appropriate, the court granted the motion to compel. The court established a detailed
procedure to govern the forensic examination and ordered the parties to share equally in the fees,
costs and expenses charged by the forensic expert.
� KnifeSource, LLC v. Wachovia Bank, N.A., 2007 WL 2326892 (D.S.C. Aug. 10, 2007). In a suit
alleging common law and UCC conversion, the plaintiff motioned the court to compel the
defendant’s production of all bank statements from a specified person who allegedly altered the
payee information on checks to deposit them in her personal account at the defendant’s bank. The
defendant claimed it could not comply with such request, arguing that it did not maintain copies of
the statements and therefore such an order would require it to create documents for the sole
purpose of complying with this discovery request. As the defendant merely claimed it did not
maintain physical copies of the requested information, not that it did not have the information, the
court held that it failed to demonstrate the information was not reasonably accessible. The court
ordered the defendant to comply with the request to the extent the information was maintained
electronically.
� Trammell v. Anderson Coll., 2006 WL 1997425 (D.S.C. July 17, 2006). In an employmenttermination
dispute, the defendant moved to quash a subpoena issued to a computer consultant
retained in “anticipation of litigation.” In turn, the plaintiff sought a motion to quash a subpoena
111