Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

eversed and remanded, stating the jury’s decision was “clearly wrong and unjust” and contradicted
the great weight of the evidence.
� BASF Fina Petrochemicals Ltd. Partnership v. H.B. Zachry Co., 168 S.W.3d 867 (Tex. Ct. App.
2004). In a breach of contract action, the defendants subpoenaed electronic data from a non-party.
The non-party responded by producing 30,000 e-mails and attachments, 70 megabytes of e-mail
data, 8,000 spreadsheets, and hard copy documents. The non-party requested legal fees and
costs from the defendants for collecting, reviewing and producing this data based on a state statute
requiring a party to reimburse a non-party for reasonable production costs. The non-party argued
the costs and attorneys’ fees were an “undue burden or expense” they suffered as a result of
responding to the defendants’ subpoena. The trial court awarded the non-party production costs
but denied attorneys’ fees, on the grounds that the statute excluded attorney fee awards. On
appeal, the appellate court affirmed and held the statute did not include attorney’s fees as part of
production costs and the attorneys’ fees were not an “undue burden or expense,” absent a showing
that the requesting party did not take “reasonable steps” to limit the scope of discovery.
� Propath Services, LLP v. Ameripath, Inc., 2004 WL 2389214 (N.D.Tex. Oct. 21, 2004). Alleging
the defendants violated a non-compete employment contract, the plaintiffs sought a preliminary
injunction against the defendants. The court had previously issued a temporary restraining order
prohibiting the defendants from using confidential information, deleting relevant e-mails or
documents, and accessing the plaintiffs’ e-mail system. Among the items at issue were electronic
marketing materials and a confidential client list. The defendant argued that the marketing
materials – including PowerPoint slides – were not confidential since they were presented in public
settings. While the court concluded that the PowerPoint presentations were not confidential, it
nonetheless prohibited the defendants from having unrestricted access based on the plaintiffs’ right
to protect their proprietary data. The court ordered the defendants to refrain from using any
PowerPoint slides produced or modified during the defendants’ employment. Regarding the
confidential client list, the court found that one of the defendants accessed the client list while
simultaneously burning CDs and sending e-mails that may have contained confidential information.
Based on these findings, the court ordered the defendants to refrain from deleting or modifying any
documents, e-mails or computer drives that contained information about the plaintiff’s business.
The court further ordered the defendants to separate these materials from the rest of their files and
to store them in a confidential file.
� Positive Software Solutions, Inc. v. New Century Mortgage Corp., 337 F.Supp.2d 862
(N.D.Tex. 2004). In a copyright infringement suit, the plaintiff filed a contempt motion against the
defendants for violating a preliminary injunction and protective order. In response, the defendants
also moved for a contempt motion and sought to affirm an arbitration award in their favor. In
reference to the protective order, the defendants represented they would cease using and destroy
all copies of the plaintiff’s proprietary software. Defense counsel asserted that it would keep
backup tapes and forensic copies of the software in a temperature-controlled, secure facility.
Despite the order, however, the defendants continued to use the software and inadvertently
produced a document to the plaintiff detailing their analysis of the database schema of the
software. The defendants also restored seven or eight backup forensic copies of the software to
use during its unauthorized analysis. The court noted that the protective order did not specifically
address the defendants’ conduct because the defendants had represented such prohibition would
be unnecessary. The court stated that the defendant “thus created a loophole, and then covertly
took advantage of it.” The court held “with considerable reluctance” that the protective order was
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