Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

thirty thousand, all of which the court reviewed individually in camera and made individual privilege
rulings. Appealing the court’s privilege rulings, Merck sought relief from the Fifth Circuit Court of
Appeals. The appeal was denied on jurisdictional grounds, but the Appeals Court did suggest the
lower court reexamine a subset of disputed documents, selected by Merck, pursuant to a different
review protocol. Subsequently, the court appointed a special master and a special counsel to
reexamine the subset of documents, promulgate substantive guidelines and issue a set of initial
recommendations regarding the documents claimed as privileged. Following Merck’s time to object
to the special master’s recommendations, the court entered the report into the record and
reproduced substantive portions of the special master’s report. The report was attentive to the
issues faced by corporations where their in-house legal department assists on numerous fronts
and that drug companies are heavily regulated by the food and drug administration when individual
privilege decisions were made for each document at issue. The court adopted the special master’s
review protocol and recommendations.
� Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007). In a claim involving an
employer suing a former employee under the Computer Fraud and Abuse Act for downloading
plaintiff’s proprietary information, the plaintiff compelled the defendant to produce hard drives from
a laptop that the defendant received from his new employer, as well as a hard drive from the
defendant’s home computer. The plaintiff argued the requested hard drives are likely sources of
evidence pertaining to defendant’s illegal downloading of information and data. The defendant
argued the requested hard drives were acquired two years after he started working for a competitor
and only contains information relevant to his new employment. The court held that the plaintiff was
entitled to the information, stating that the hard drives were the most likely places where the
defendant would have possibly transferred and stored the missing information. The court also
indicated that although the defendant obtained the requested hard drives two years after he left the
plaintiff’s employment, the defendant easily could have transferred information to newly acquired
hard drives and, thus, could be likely sources of evidence relevant to the plaintiff’s claims.
� Recinos-Recinos v. Express Forestry, Inc., 2006 WL 2349459 (E.D. La. Aug. 11, 2006). In a
class-action suit, plaintiffs filed a motion to compel for sanctions and for contempt against
defendants for withholding documents, misrepresenting their availability throughout the entire
litigation process, and for deliberate spoliation of evidence. Defendant claimed to have lost several
key requested documents stored in an electronic form due to Hurricane Katrina. Defendant claimed
to have lost these key documents because they were moved from the main Arkansas business
office to defendant’s Mississippi beach house on the Gulf of Mexico at the height of hurricane
season. The court found that even if this unwise move of key documents to a susceptible area was
not deliberate, it was, in the least, negligent and worthy of sanctions based on a failure to properly
preserve documents. The court also discovered that several key officers of the defendant company
lied during depositions and that the entire litigation was filled with defendant’s resistance towards
any discovery requests. The court chastised defendant, “To date, trial preparation has been
accomplished only through plaintiffs’ Herculean efforts bolstered by staccato motions to compel
and a corresponding series of orders compelling production of responsive documents and/or
information” because “[d]efendants have continually flouted the orders of this Court”. The court
imposed monetary sanctions in the form of attorneys’ fees plus expenses necessarily incurred.
� Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D. La. July 19, 2006). The
court awarded monetary sanctions against a defendant company for failing to preserve electronic
evidence. The court established that the defendant’s “litigation hold” came too late in the litigation
process because the company issued the “hold” policy after litigation had already started instead of
130