Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

Amendment rights. Finding the injunction violated the defendant’s constitutional rights since the
records had already been released pursuant to a written public records request, the Court of
Appeal vacated the injunction. The court recognized that ethical and procedural violations would
likely be asserted against the defendant if the inadvertently privileged documents—by definition not
public records—were disseminated but found the constitutional issues overrode any ethical
concerns.
� S. Capitol Enterprises, Inc. v. Conseco Services., LLC, 2008 WL 4724427 (M.D.La. Oct. 24,
2008). In this ongoing electronic discovery dispute, the plaintiffs sought sanctions and/or additional
discovery orders claiming the defendants failed to comply with a previous discovery ruling. The
plaintiff claimed the defendant failed to produce 1,000 relevant documents, however the court
stated that the likely benefit in having more documents produced was outweighed by the burden
and expense associated with retrieving the evidence. The court noted that “perfection in document
production is not required,” and held that experts were allowed to estimate based on the data
already produced.
� Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D.La. Oct. 1, 2008). In this contract dispute, the
plaintiff moved to quash the defendant’s subpoenas duces tecum issued to two third-party
individuals demanding computer equipment for inspection. The plaintiff argued the subpoenas
were unwarranted, unduly burdensome and were a “fishing expedition.” The defendant disagreed
with the plaintiff, arguing the subpoenas were issued with good cause. Finding the first individual
sufficiently responded to a previous subpoena, the court granted the motion to quash. Regarding
the second individual, the court denied the motion to quash determining there was relevant
information on the requested computer. The court ordered the defendant to prepare a search
protocol for inspection of the individual’s computer that excluded privileged communications.
� In re Riverside Healthcare, Inc. v. Sysco Food Serv. of San Antonio, LP, 393 B.R. 422
(M.D.La. Sept. 11, 2008). In this bankruptcy case, the plaintiff sought an adverse inference
instruction based on the defendant’s deletion of relevant e-mail from its servers. Stating that bad
faith must be demonstrated to support an adverse inference, the court held that the plaintiff did not
prove that the defendant intentionally deleted any e-mail since it was deleted in accordance with
the defendant’s routine practice prior to litigation. The court also noted that the plaintiff’s failure to
pursue this evidence from other potentially available sources undermined its claim of unfair
prejudice and the demand for sanctions. Accordingly, the court denied the plaintiff’s motion.
� Sherman v. Harrah’s New Orleans Casino, 2008 WL 3914970 (E.D.La. Aug. 20, 2008). In this
litigation involving the settlement of a gambling debt, the defendants filed an objection to the
magistrate’s prior report and recommendation granting the plaintiff’s motion to compel and
awarding plaintiff attorney’s fees and expenses. The magistrate recommended the plaintiff be
awarded attorneys fees and costs associated with the filing of the second motion to compel and
three additional depositions made necessary due to the defendant’s failure to meet their discovery
obligations. The defendants objected to this recommendation, arguing that its discovery response
was substantially justified and the amount awarded for attorney’s fees was excessive and contrary
to Fed.R.Civ.P. 37(a)(5). Denying the defendants’ objection, the court approved the magistrate’s
report, agreeing that the defendant had abused the discovery process by repeatedly waiting until
the eve of deposition to provide hundreds of pages of responsive documents.
� Canon U.S.A., Inc. v. S.A.M., Inc., 2008 WL 2522087 (E.D.La. June 20, 2008). In this litigation
involving an alleged breach of a dealer agreement between the plaintiff distributer and the
defendant dealer, the plaintiff filed a motion to compel production and sought sanctions. The
plaintiff sought paper and electronic documents from the defendant’s server and argued the
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