Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

defendant’s withholding of responsive documents and incomplete responses justified sanctions.
The defendant argued that either the documents did not exist due to the destruction caused by
Hurricanes Katrina and Rita, or that production would occur if the current searches yielded
responsive information. Finding the defendant’s responses to date to be insufficient as they
appeared to have been conducted “lackadaisically,” the court ordered the defendant to bear the
costs of employing a third-party computer forensic analyst to search its server and produce the
requested information. The court also granted sanctions in part, awarding costs to the plaintiff
incurred in issuing a third-party subpoena and in seeking insurance information.
� Thomas v. IEM, 2008 WL 695230 (M.D.La. Mar. 12, 2008). In this discrimination suit, the plaintiff
served a Fed.R.Civ.P. 45 subpoena on the defendant (her former employer), seeking production of
a complete electronic copy of the e-mail boxes of nine named individuals as they appeared on a
specified date. Rather than responding to the subpoena, the defendant served formal objections to
the plaintiff who then filed this motion to compel a response to the subpoena. The defendant
objected to the use of a Rule 45 subpoena on a party as well as the limited response time and
argued that the information sought was irrelevant, confidential, duplicative and unduly burdensome.
Agreeing with the defendant, the court denied the plaintiff’s motion as the information sought
constituted discovery within the meaning of Fed.R.Civ.P. 26 and 34 and the request was not limited
in time or subject matter.
� Marketfare Annunciation, LLC v. United Fire & Cas. Ins. Co., 2007 WL 3273440 (E.D.La. Nov.
5, 2007). In this lawsuit involving an insurance claim for damages resulting from Hurricane Katrina,
the plaintiffs sought monetary sanctions and an adverse jury instruction. Prior to the close of
discovery, the plaintiffs requested the defendants to produce relevant e-mails and implement a
litigation hold to preserve relevant electronic records. The plaintiffs then sought sanctions,
contending a failure by the defendants to establish a mandatory litigation hold to lead to the loss of
relevant electronic evidence and e-mails from relevant key players. Finding inadequacy in the
plaintiffs’ explanation for why this discovery matter was not pursued earlier, the court determined
that the plaintiffs should have moved to compel production prior to seeking sanctions.
Subsequently the court denied sanctions, as the plaintiffs had not demonstrated how the
defendants violated a court preservation order.
� Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 (E.D.La. Aug. 29, 2007). In this insurance
dispute, the defendants’ subpoenaed evidence from a third party, Rimkus Consulting Group, which
investigated their home for property damage following Hurricane Katrina. Rimkus motioned the
court to quash the subpoena and instead issue a protective order and argued for production in
paper to prevent any compromise in the authenticity or integrity of its engineering reports. The
court denied the motion as the files were stored electronically in the ordinary course of business
and the defendant requested an electronic production. The court further noted Rimkus failed to
provide evidence sufficient to meet its burden that the electronically stored information was not
reasonably accessible due to undue burden or cost. While recognizing Rimkus as a non-party
entitled them to protection from undue burden and expense, the court noted Rimkus must to show
that the requested electronic information would be unduly burdensome to produce. In applying Fed.
R. Civ. P. 45(d)(1)(D), the court refused to find the mere statement of an attorney sufficient
evidence to prove burden.
� In re Vioxx Prod. Liab. Litig., 2007 WL 2309877 (E.D.La. Aug. 14, 2007). In this multidistrict
product liability suit, Merck, the producer of the pain medication at issue in this dispute, claimed
attorney-client privilege on numerous electronic documents and refused to produce them.
Specifically, Merck produced over two million documents and claimed privilege as to approximately
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