Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

when it was reasonably anticipated. Furthermore, the court found that the scope of the “hold” was
not broad enough and did not prevent certain key employees from inadvertently discarding relevant
information. Although the defendant had a “litigation hold” policy in place, the court ruled that
defendant’s policy was not adequate enough to fulfill preservation requirements. Plaintiff motioned
the court to impose sanctions in the form of adverse jury instructions, but it declined to do so since
there was no evidence that the spoliation occurred with malice or bad faith. Instead, the court
issued monetary sanctions to compensate plaintiff for costs and fees related to discovering the
spoiled evidence.
� Griggs v. Harrah’s Casino, 929 So. 2d 204 (La. Ct. App. 2006). In a casino gaming dispute, the
defendants appealed the trial court’s decision as erroneous for relying on witness testimony rather
than forensic tests in ruling that the plaintiffs had won a slot machine jackpot. The defendants
offered the testimony of several experts who, after conducting a forensic examination of the
computer microprocessor of the slot machine, concluded that no jackpot had been won by the
plaintiffs. However, one of the defendant’s experts had made a pre-trial statement suggesting data
had been lost, casting his conclusions into doubt. The plaintiff’s expert did not conduct an
examination of the slot machine, but opined that the record of the win was stored in temporary
memory which was lost or corrupted when the casino technician powered the slot machine off and
on before a forensic examination could be conducted. The appellate court affirmed the trial court’s
decision, holding that there was sufficient eyewitness testimony to provide an adequate basis for
the verdict as well as admissions from defendant’s forensics experts to allow the jury to doubt their
testimony.
� BG Real Estate Servs., Inc. v. American Equity Ins. Co., 2005 WL 1309048 (E.D. La. May 18,
2005). In an insurance dispute, the plaintiffs sought production of a computer hard drive. The
defendants objected on the grounds that the request was overly broad and sought irrelevant
information that was unlikely to lead to admissible evidence. Finding for the defendants, the court
declined to order production of the entire drive. However, the court noted that Fed. R. Civ. P. 34(a)
includes relevant materials contained on a computer hard drive in its definition of "other data
compilations." The court further stated that “[i]f particular non-privileged items on the referenced
computer hard drive are responsive to other requests for production as to which defendants’
objections have not been sustained, those items must be ‘translated, if necessary, by the
respondent through detection devices into reasonably usable form’." The court noted that the
defendants could withhold materials it considered privileged and list them on a privilege logs for a
possible later discoverability determination.
� In re Vioxx Prods. Liab. Litig., 2005 WL 756742 (E.D.La. Feb 18, 2005). In a multi-district
litigation, the court ordered all parties to preserve evidence relevant to the litigation, including
relevant “writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes,
electronic messages, voice mail, E-mail, telephone message records or logs, computer and
network activity logs, hard drives, backup data, removable computer storage media such as tapes,
discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software,
books, ledgers, journals, orders, invoices, bills, vouchers, checks statements, worksheets,
summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films,
charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or
transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such
material.” In addition, the court ordered perseveration of “[i]nformation that serves to identify,
locate, or link such material, such as file inventories, file folders, indices, and metadata.” The court
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