Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

dates on which the photos were imported into the new system and not the dates on which they
were originally taken. Despite this, the plaintiff asserted the defendant’s computer consultant
testified in a deposition that the original dates were retrievable. In reviewing the deposition
testimony, the court determined the expert actually stated it would be impossible to print any of the
photographs with dates indicating when they were originally taken. In denying the motion for a new
trial, the court concluded the plaintiff was not prejudiced by being prohibited from presenting the
import date information to the jury and further stated that the court was well within its bounds to
prevent further discovery of the computer system given the plaintiff’s request was made a year and
a half after the discovery period closed.
� Jinks-Umstead v. England, 227 F.R.D. 143 (D.D.C. 2005). In a case involving discrimination
allegations against the U.S. Navy, the court granted a new trial to allow the plaintiff to present its
case using new evidence which the defendant initially claimed it no longer had and did not produce
during discovery. At trial, after the defendant produced this information – 1,400 pages of reports
generated from a database – for the first time, the court granted the plaintiff’s motion for a new trial
and for additional limited discovery. After the court granted the motion, the plaintiff filed a series of
related post-trial discovery motions. The plaintiff requested, inter alia, compliance with an earlier
order to provide access to the defendant’s database for review by either the plaintiff’s counsel or a
computer technology consultant, to determine if information could be retrieved from the database.
The defendant argued it had given the plaintiff access to the database during a specified time, but
the plaintiff failed to accept the offer. The court declined to analyze whether the plaintiff forfeited its
database inspection opportunity because new deposition testimony of one of the defendant’s
employee’s indicated the information could be retrieved by specific data queries. Based on this
testimony, the court ordered the defendant to query the database, retrieve the relevant information,
and produce it to the plaintiff within 60 days of the order. See also Jinks-Umstead v. England, 2005
WL 3312947 (D.D.C. Dec. 07, 2005)(Distinguishing Morgan Stanley decision in concluding adverse
inference instruction not appropriate where defendant did not act with “evil intent, bad faith, or
willfulness.”).
� Judicial Watch, Inc. v. United States Dep’t. of Justice, 337 F.Supp.2d 183 (D.D.C. 2004), rev’d,
432 F.3d 366 (D.C. Cir. 2005). The defendants filed a motion for reconsideration of the court’s
earlier ruling relating to the production of nine e-mail messages for which they had asserted the
attorney work-product privilege. Pursuant to the Freedom of Information Act (FOIA), the court had
previously required the defendants to provide the plaintiff with redacted copies of the privileged emails.
In its motion for reconsideration, the defendants argued that the FOIA segregability
requirement – mandating production of “any reasonably segregable portion of a record” – did not
apply and, as a result, the e-mails did not need to be produced. The court rejected this argument,
holding that the FOIA segregability requirement applies to all documents, including e-mails.
Emphasizing that the defendants made no effort to separate factual and privileged material, the
court denied the defendants’ motion and ordered production of the redacted copies. On appeal, the
court determined the entire contents of the e-mails were prepared in anticipation of litigation,
protected by the attorney work-product doctrine, and exempt from disclosure.
� United States v. Philip Morris USA Inc., 327 F.Supp.2d 21 (D.D.C. 2004). In a case brought by
the government involving smoking and health related issues, the government filed a motion for
evidentiary and monetary sanctions against the defendants for spoliation of evidence. Although the
court had ordered preservation of all potentially relevant documents, the defendants continued to
delete e-mail when it became sixty days old, on a monthly systemwide basis for a period of two
years after the court order. Even after learning about their inadequate document retention policy,
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