Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Maggette v. BL Dev. Corp., 2010 WL 3522798 (N.D. Miss. Sept. 2, 2010). In this wrongful death
litigation, the defendants sought to avoid dispositive sanctions for discovery misconduct by arguing
mere negligence. Finding the defendants continually stonewalled discovery in bad faith over a
period of many months, the court noted the defendants obstructed the process and were willing to
write off minor discovery sanctions. The court determined the defendants undertook “sham efforts”
as they could not “describe the databases searched, the search terms, methods or parameters
used…or provide any expert information confirming that there are no documents, electronically
stored information or other [responsive] information.” Nor could they explain numerous production
discrepancies or alterations and deletions of documents. The court found it “quite difficult … to
accept that a multi-billion dollar corporation facing very high-stakes litigation was unable–for close
to five years–to uncover its own documents at its own facilities when the special master” located
the information in five to seven minutes. Finding the defendants engaged in lies and misconduct
despite escalating warnings, the court imposed dispositive sanctions.
� Gaddis v. Smith & Nephew, Inc., 2008 WL 2415183 (S.D. Miss. June 11, 2008). In this product
liability litigation, the defendants filed a motion to dismiss claiming the plaintiff failed to comply with
the deadline for court ordered initial disclosures. After the plaintiff failed to make initial disclosures
despite a second order and extended deadline, the defendants sent a letter in an attempt to
resolve the discovery dispute under Fed.R.Civ.P. 37. Finding the plaintiff completely failed to
comply with any discovery requirements and respond to the motion to dismiss, the court dismissed
the plaintiff’s case without prejudice for failure to meet discovery obligations and comply with court
orders.
� Great Am. Ins. Co. of New York v. Lowry Development, LLC, 2007 WL 4268776 (S.D. Miss.
Nov. 30, 2007). In this contract dispute, the plaintiff sought sanctions for spoliation of evidence,
claiming the defendant willfully destroyed relevant electronic evidence which it had a duty to
preserve. During his first deposition, the defendant testified that his computer crashed during a
lightning storm and, was left with the computer repair service as it was unable to be repaired. The
computer technician later testified that the computer was repaired and returned to the defendant.
During his second deposition, the defendant offered no explanation for the contradiction but stated
that the computer failed again after its return from the computer repair service, at which point he
threw it away. As the plaintiff was able to establish the disposal of potentially relevant documents
after the litigation began, the court determined that the plaintiff proved willful spoliation by clear and
convincing evidence. The court held the appropriate sanction was to reduce the plaintiff’s burden of
proof on the issue of mutual mistake from clear and convincing evidence to a preponderance of the
evidence.
� Butler v. Kmart Corp., 2007 WL 2406982 (N.D.Miss. Aug. 20, 2007). In this case, the plaintiff
motioned the court to order the defendant to comply with earlier discovery requests and argued
that defendant’s mere attempt to locate documents did not sufficiently discharge its discovery
obligations. The defendant produced affidavits attesting to its search efforts for documents at the
relevant locations and lack of results, but mentioned very little about whether it conducted searches
of its computer systems. The court ordered the defendant to produce responsive ESI or
demonstrate unsuccessful diligent searching. The plaintiff also sought open access to the
defendant’s home office databases, but the court denied the motion based on the lack of evidence
of improper action.
� Kearley v. Mississippi, 843 So.2d 66 (Miss. Ct. App. 2002). A criminal defendant was convicted
of sexual battery and appealed on several issues including proper authentication of e-mails which
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