Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

had been withheld, and if e-mails were missing, they no longer existed. The defendant informed
the court that it subleases space from a law firm and its electronic files were stored on the law
firm’s server. The court observed there were several possible locations where the missing e-mails
could be located, including the plaintiff’s e-mail account at work, other employee accounts, on hard
drives of company computers and on backup tapes of the law firm’s server. The court ordered the
defendant to provide a detailed affidavit specifying the nature of the search the defendant
conducted in locating the responsive e-mails. It further ruled the plaintiff would then have ten days
to respond to the adequacy of the search described in the affidavit and at that point the court would
consider whether additional searches were necessary.
� J.C. Associates v. Fidelity & Guar. Ins. Co., 2006 WL 1445173 (D.D.C. May 25, 2006). In an
insurance coverage dispute, the plaintiff challenged the defendant’s interpretation of a policy
exclusion clause and sought discovery of related claim and litigation files in the defendant’s
possession. The defendant resisted the discovery request, but conducted a preliminary electronic
search of its 1.4 million claim and litigation files and identified 454 related claims. The judge
articulated that the issue of whether or not to order discovery of the defendant’s files was not a
matter of “relevance, but rather burdensomeness.” The judge ordered file-sampling, instructing the
defendant to randomly select and scan 25 of the 454 identified claims into an electronically
searchable document. The court identified four specific search terms that the defendant should use
in conducting and electronic search of the claims for responsiveness. The judge instructed the
defendants to review documents containing those keywords and to produce any non-privileged,
responsive information to the plaintiff. The court retained the authority to demand further discovery
and allocate costs after reviewing the information produced from the 25 files.
� Breezevale Ltd. v. Dickinson, 879 A.2d 957 (D.C. Cir. 2005). A tire distributing company brought
an action against its attorneys for legal malpractice. The company alleged the attorneys should
have delayed the deposition of one of the company’s employees until the company could further
investigate the employee’s conduct. The employee being deposed claimed she forged documents
relating to a lawsuit against a tire manufacturing company at the direction of and in collaboration
with company executives. At trial, the court dismissed the legal malpractice lawsuit and imposed
fees upon the company for knowingly bringing a suit based on forged documents. A computer
evidence expert testified two documents were created on the employee’s computer with a last
access date that corroborated the employee’s testimony. In addition, the expert determined one of
the documents was computer-generated, even though the defendant did not own a computer at
that time. Other evidence of forgery included two documents that were typed on a letterhead that
did not exist at the time of the alleged document create dates. Based on this evidence, the trial
court came to the “inescapable conclusion” the documents at issue were forged. The appellate
court affirmed the lawsuit dismissal and award of $4 million in fees based on its finding that
sufficient evidence demonstrated the company’s executives knew and participated in the forgeries.
However, the court vacated the $1 million punitive sanctions, noting, “[t]he other sanctions imposed
by the trial court themselves bore ‘punitive’ elements.”
� Wild v. Alster, 377 F.Supp.2d 186 (D.D.C. 2005). In a medical malpractice lawsuit, the plaintiff
moved for a new trial after the jury found in favor of the defendant. The plaintiff alleged the court
erroneously denied a request for an expert examination of the defendant’s computer. In particular,
the plaintiff sought to discover if certain dates, specifically the date photographs of her face were
taken, could be retrieved from the defendant’s hard drive. The original photographs were lost
during a computer system conversion; however, the defendant was able to recover some of the
photos with the assistance of a data recovery service. The recovered photos only displayed the
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