Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Corinthian Mortgage Corp. v. Choicepoint Precision Mktg., LLC, 2009 WL 36606 (E.D.Va. Jan.
5, 2009). In this contract dispute, the prevailing defendant moved for attorneys’ fees, including fees
for document review and production. The defendant argued its time spent on discovery was
reasonable because: (1) more than 2.6 million document pages were reviewed in order to produce
1.2 million pages; (2) it took extra care to avoid spoliation; and (3) its review of the plaintiff’s
documents was hindered by the plaintiff’s disorganized production. The plaintiff argued the claimed
attorneys’ fees were excessive and that it produced documents electronically as they were
maintained in the course of business. Finding the time spent on discovery “excessively high,” the
court reduced the total fee awarded. The court noted that the plaintiff should not be charged for the
defendant’s inefficiencies in document review and production.
� Sprenger v. Rector and Bd. of Visitors of Va. Tech, 2008 WL 2465236 (W.D.Va. June 17,
2008). In this disability and civil rights litigation, the plaintiff filed a motion to quash a subpoena
issued by the defendants to a third party agency, seeking all electronically stored information on
various pieces of media utilized by her husband. Specifically, the defendants sought e-mail sent
between the plaintiff and her husband regarding her medical condition. The plaintiff argued the
subpoena was overbroad, burdensome and sought records protected by spousal privilege. The
defendants argued that any spousal privilege was obviated by the fact that both the plaintiff and her
husband were state agency employees and the state has both the right to monitor employee e-mail
and a written policy which provides employees should have no expectation of internet privacy. In
this case of first impression, the court considered persuasive precedent and determined the
defendants did not meet their burden of demonstrating a waiver of privilege after noting the
defendants had provided no evidence that the plaintiff or her husband were aware of the internet
usage policy, and thereby granted the plaintiff’s motion.
� In re Subpoena Duces Tecum to AOL, LLC, 2008 WL 1956266 (E.D.Va. April 18, 2008). In this
insurance fraud litigation, the defendant objected to the magistrate judge’s order that quashed its
subpoena. The subpoena sought production of documents from the non-party witnesses’ e-mail
accounts through AOL. The non-party witnesses claimed the subpoena violated the Electronic
Communications Privacy Act, imposed an undue burden, and sought e-mails protected by the
attorney-client privilege. Determining the statutory language of the Privacy Act does not allow AOL
to divulge the contents of the requested electronic communications, the court upheld the
magistrate judge’s order. Additionally, the court held the subpoena was overbroad and imposed an
undue burden under Fed.R.Civ.P. 45(c), since it requested all e-mails from a six week period
including private information unrelated to the litigation.
� De Technologies, Inc. v. Dell, Inc., 2006 WL 3500962 (W.D. Va. Dec. 4, 2006). In a patent
infringement suit, the plaintiff claimed the defendant’s production of documents was insufficient in
response to specific discovery requests and certain electronic documents produced in an online
document database should not be allowed as evidence at trial. The defendant used an online
database to produce over 500,000 electronic documents in a searchable, electronic format to the
plaintiff. The database was searchable by keyword but the database did not reference or identify
which documents were responsive to each discovery request. The plaintiff argued that Federal
Rule of Civil Procedure 34 required the production of documents as “kept in the ordinary course of
business” and that a searchable database did not meet this definition, requiring the plaintiff to
guess which documents would be used by the defendant in response to the plaintiff’s claims at
trial. The court agreed with the plaintiff and held the electronic documents were downloaded into a
specially created database and were not produced in a form consistent with the defendant’s
internal computer system. Furthermore, they found that the database did not organize the
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