Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

absent a motion to compel. The court also found that the trial court erred by ordering the defendant
to produce his hard drives contrary to the provisions of Rule 196.4 as discussed in In re Weekley
Homes. Finally, the court noted that e-discovery is a “common component of modern litigation” and
does not by presence alone require a special master. Since the case did not require specialized
knowledge, the trial court also abused its discretion by appointing a special master.
� Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D.Tex. Feb. 19, 2010). In
this employment agreement dispute, the plaintiff sought sanctions, costs and attorneys’ fees, and a
finding of contempt, alleging the defendants intentionally spoliated evidence and failed to produce
requested discovery. Before addressing the parties’ specific arguments, the court noted that
“spoliation of evidence – particularly of electronically stored information – has assumed a level of
importance in litigation that raises grave concerns” and “distract[s] from the merits of a case, add[s]
costs to discovery, and delay[s] resolution.” Moving to the case specifics, the court found the
defendants intentionally lost, altered and deleted e-mails, and sent the case back to the jury with a
permissive adverse inference instruction. The court also awarded the plaintiff attorneys’ fees and
costs incurred in the spoliation investigation. Notably, the court distinguished the recent Pension
Committee ruling from the Southern District of New York, finding the differences between circuits in
relation to culpability of parties limited the applicability of the approach taken in Pension
Committee. The court identified an additional distinction in regard to the burden of proof in relation
to relevance and prejudice of spoliated evidence.
� MRT, Inc. v. Vounckx, 2009 WL 3491165 (Tex.App.-Dallas, Oct. 30, 2009). In this civil litigation
case, the plaintiffs appealed from a jury verdict in favor of the defendants, arguing they were
entitled to a new trial because the defendants failed to comply with discovery obligations and
misrepresented the steps taken to search and produce backup tapes (some of which were
destroyed). The defendants argued the plaintiffs failed to make a specific request for the backup
tapes as required by Texas Rules of Civil Procedure 196.4. Citing In re Weekley Homes, L.P. and
the specificity requirement of Rule 196.4, the court disregarded the plaintiffs’ contentions and
affirmed the lower court’s judgment. The court noted Rule 196.4’s purpose was to ensure the clear
understanding by both parties of ESI requests and reiterated the duties of both parties to share
pertinent information regarding electronic storage systems prior to e-discovery requests, which did
not occur in this case. Finally, the court concluded that the plaintiffs failed to demonstrate that the
defendants knew, or should have known, that the destroyed tapes contained relevant information,
and they therefore were not entitled to spoliation instructions because the defendants did not have
a duty to preserve the backup tapes in question.
� In re Weekly Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009). In this breach of contract
litigation, the defendant petitioned the Texas Supreme Court for writ of mandamus of a trial court
order that directed the defendant to provide four employees’ hard drives to the plaintiff’s forensic
experts to image, copy and search for deleted e-mails. The defendant argued that the plaintiff
failed to comply with Texas Rules of Civil Procedure 196.4 which governs production requests for
electronic data. Applying Rule 196.4, the court found the trial court did not abuse its discretion
regarding the deleted e-mails request even though the plaintiff failed to satisfy the rule’s specificity
requirement since it became "abundantly clear" that this information was sought and no prejudice
was suffered by the defendant. Turning to the imaging and forensic examination dispute, the court
relied on the Federal Rules of Civil Procedure and case law since there are no express guidelines
contained within Rule 196.4. Through this analysis, the court determined that the trial court abused
its discretion since the search of the employees’ hard drives was highly intrusive and unjustifiable.
The court granted the writ of mandamus and remanded the case advising the trial court to be
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