Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

that were likely to arise, nor did they comply with the original writing requirement or demonstrate
the absence of unfair prejudice. After explaining the legal standard for each step of ESI
admissibility, the magistrate stated “it can be expected that electronic evidence will constitute
much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should
know how to get it right on the first try.”
� Quotient, Inc. v. Toon, 2005 WL 4006493 (Md. Cir. Ct. Dec. 23, 2005). In a breach of contract
suit, the plaintiff alleged that the defendant, while in plaintiff’s employ, provided a former employee
access to the plaintiff’s computer system so that the former employee could obtain trade secrets
and confidential information. In order to preserve potentially relevant email evidence on the
defendant’s personal computer, the plaintiff filed an emergency motion for expedited discovery.
The plaintiff offered to pay for a computer expert to make a mirror image of the defendant’s
computer and stipulated that the contents could be sealed until further court order. In granting the
emergency motion, the court found a “substantial probability” that relevant electronic evidence,
including e-mails and instant messages, “could be made less accessible to the parties merely by
the defendant’s normal course of computer use, regardless of his intentions and motive.” The court
observed, where “the unintentional destruction of relevant evidence should be halted when it can
be done so in a fashion that is minimally intrusive and where [the other party] is willing to bear the
full cost of the process.” Citing the Sedona Principles, the court granted the emergency order,
finding, in certain circumstances, preservation orders may aid the discovery process, by promoting
efficiency and by specifying the parties’ preservation obligations. The court requested that the
defendant’s lawyers screen the computer data for privacy, privilege, and relevancy issues before
disclosing the contents to the plaintiffs.
� Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D.Md. 2005). In an action
based on racial discrimination allegations, the plaintiffs requested hard copy and electronic records
and issued interrogatories with questions “specifically designed to discover the nature, extent, and
location of electronically stored records, the [d]efendants’ IT capabilities, the nature of archived
data, e-mail, and records retention policies.” Based on concerns about performing pre-production
privilege review, the defendant claimed undue burden and expense. Referencing the proposed
Federal Rules of Civil Procedure amendments, the court declared that both parties had a duty to
negotiate a reasonable discovery plan and present the plan to the court. The court asserted, “[t]he
days when the requesting party can expect to ‘get it all’ and the producing party to produce
whatever they feel like producing are long gone…electronic discovery is not played on a level field.
The plaintiff typically has relatively few electronically stored records, while the defendant often has
an immense volume of it. In such cases, it is incumbent upon the plaintiff to have reasonable
expectations as to what should be produced by the defendant.” The court ordered the parties to
meet and confer within 30 days about e-discovery matters, including discovery scope and issues
relating to privilege review. After that meeting, the court indicated it would conduct a follow-up
hearing to discuss those issues.
� Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D. Md. 2005). In an employment
discrimination case, the plaintiff filed a motion for sanctions against the defendants for failing to
preserve electronic documents and for spoliating e-mail evidence. Citing Zubulake, the court
addressed the defendants’ duty to preserve e-mails and other relevant documents. The evidence
showed the defendants were on notice of the lawsuit long before they halted their data destruction
policy. In fact, the defendants admitted they never issued a company-wide instruction regarding
suspension of their data destruction policy and they did not save the plaintiff’s e-mails relating to
the harassment incidents or his termination. Based on this evidence, the court granted the
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