Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

a counter motion, the defendant claimed that the email was protected by attorney-client privilege
and demanded return of the document. The court denied the defendant’s counter motion, finding
the privilege had been waived after the defendant had repeatedly failed to take steps in securing
the return of the email after first learning that the document had been inadvertently disclosed.
Noting that the plaintiff had deposed one of the defendant’s witnesses about the substance of the
email without objection from the defendant in July of 2004, the court chided the defendant’s
counsel for failing to assert a claim of attorney-client privilege at the deposition. The court observed
that the substance of the email should have placed the defendant on notice that it had produced a
document containing privileged communications seeking legal advice. The email contained
attachments specifically labeled “Confidential-Attorney’s Eyes Only” and was addressed to a law
firm. Not until February of 2005, when the email was introduced again at another deposition did the
defendant assert attorney-client privilege. Still, the defendant waited three months to petition the
court for return of the document and only after the plaintiff refused to return the email and brought a
motion to compel further testimony. The court determined that the plaintiff was entitled to keep the
email and demand further testimony in relation to it.
� Vela v. Wagner & Brown, Ltd., 2006 WL 1004476 (Tex. App. Apr. 19, 2006) substituted opinion
and aff’d by 203 S.W.3d 37 (Tex. App. 2006). Asserting a cross-appeal in an oil and gas case, the
appellee challenged an award of $75,000 in monetary sanctions for spoliation of computer data
and discovery abuse. The appellee argued, inter alia, it did not have a duty to preserve the
computer data at issue, the data was not intentionally or negligently destroyed, and the appellants
were not prejudiced by the absence of the data. During discovery, the appellee had failed to
produce its testifying expert’s underlying computer data work product. The appellee claimed the
data had been stored on the expert’s computer, which had been inadvertently upgraded and
replaced by the expert’s employer and was no longer available. The appellant sought to exclude
the expert’s testimony as a sanction for spoliation of the computer data. The trial court permitted
the expert to testify but ordered the appellee to re-create the expert’s calculations and provide the
computer data to the appellants. When the appellee again failed to produce the data, the trial court
awarded sanctions. On appeal, the appellate court affirmed the sanctions award stating, “the trial
court’s order meets both parts of the test for a ‘just’ sanction based on both a pattern of discovery
abuse by [the appellee] and its failure to preserve and produce [the expert’s] computer data.”
� In re BP Prods., N. Am, Inc., 2006 WL 648816 (Tex. Ct. App. Mar. 13, 2006) Defendant BP
Products North America, Inc. filed a petition for a writ of mandamus complaining that the trial judge
had abused her discretion in signing an order on February 6, 2006 compelling BP to produce by
March 17, 2006 “all e-data derived from backup tapes and maintained on computer hard drives
under BP’s control” that were responsive to plaintiff’s steering committee request. The Texas
appellate court, which had previously denied BP’s motion for emergency relief requesting a stay of
the order, denied the petition.
� Tantivy Communications, Inc. v. Lucent Techs. Inc., 2005 WL 2860976 (E.D.Tex. Nov. 1,
2005.) In a patent infringement case, the plaintiff sought to exclude evidence based on the
defendant’s “hide the ball” discovery abuse. During discovery, the plaintiff had sought documents
and data compilations including documents contained on the defendant’s Internet Web site,
relating to interoperability testing for the products at issue. The defendant had represented
repeatedly it was unaware of any such documents. However one of the defendant’s employees
revealed at a later deposition, pursuant to the defendant’s document destruction practices, paper
documents were shredded and electronic documents were deleted that included interoperability
contracts and test plans. Citing Zubulake, the court stated, “[the defendant] and its counsel are well
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