Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

not clear enough to warrant enforcement by contempt and declined to hold either party in
contempt.
� Massimo v. State, 144 S.W.3d 210 (Tex. Ct. App. 2004). Challenging a misdemeanor conviction
for harassment by electronic communication, the defendant argued, among other things, that the
trial court erred by not granting her a continuance. Specifically, the defendant argued she was
entitled to a continuance because she did not receive e-mails, relied upon by the prosecution, until
the day of trial. Defense counsel further argued that it needed the e-mails in order to have an
expert evaluate their source before trial. Denying the defendant’s motion, the trial court noted
copies of the e-mails were available three days before trial and defense counsel should have
picked up the copies at the District Attorney’s office. On appeal, the appellate court also indicated
that counsel should not have waited 17 days before the trial to file discovery and inspection of
evidence motions and that counsel could have hired an expert even if the e-mails were unavailable
for review. In affirming the trial court’s decision, the appellate court declared, “the failure to obtain
an expert or to obtain the e-mails until the eve of trial can hardly be the fault of the State…[the
defendant] was at least partially, if not totally, responsible for their last-minute production.”
� Multitechnology Servs. v. Verizon Southwest, 2004 WL 1553480 (N.D. Tex. July 12, 2004). In a
discovery dispute relating to the allocation of costs for responding to interrogatories, the defendant
sought a protective order declaring that it would cost $60,000 to produce the requested
information, which was in electronic format. A magistrate judge ordered the plaintiff to pay half of
the costs. In response to the order, the plaintiff argued that it was requesting only “accessible
data,” making cost-shifting inappropriate in this case under the Zubulake seven-factor test. Finding
cost-shifting was fair, the magistrate asserted that “requiring the parties to evenly shoulder the
expense is the most effective resolution because it balances the benefit of the discovery for [the
plaintiff] and provides [the defendant] with incentive to manage the costs it incurs in answering [the
plaintiff’s] interrogatories.” The magistrate further classified the expenses as court costs that the
prevailing party could recover. See also Multitechnology Servs. v. Verizon Southwest, No. 4:02-
CV-702-Y (N.D. Tex. July 19, 2004) (affirming the magistrate judge’s decision).
� In re Lowe’s Cos., Inc., 2004 WL 1092374 (Tex. App. May 18, 2004). In a personal injury lawsuit,
the trial court granted the plaintiff’s motion for an order compelling production of the defendant’s
computer database. Specifically, the trial court ordered the defendant to bring or have access to a
computer at the defendant’s deposition that could search, sort, and print any database information
that the plaintiff’s counsel might request. The defendant objected to the order claiming that the
request was overbroad and argued that producing the entire database electronically would give the
plaintiff unfettered access to privileged or irrelevant information. Ruling in favor of the defendant,
the appellate court declared that “requests for information that are not reasonably tailored as to
time, place, or subject matter amount to impermissible ‘fishing expeditions’.” Finding the discovery
order overbroad, the appellate court issued a writ of mandamus, vacating the portion of the order
that required production of the database.
� Cisco Sys., Inc. v. Alcatel USA, Inc., 301 F. Supp.2d 599 (E.D. Tex. 2004). The plaintiff sued the
defendant, a competitor, for antitrust violations, and the defendant counterclaimed declaring that it
owned the allegedly misappropriated property. The plaintiff moved to dismiss the counterclaim on
res judicata principles given that the defendant’s allegations were the subject of a prior litigation
that had been dismissed by the trial judge. In response, the defendant argued that the plaintiff’s
late production of volumes of electronic data contained on back up tapes prevented the defendant
from bringing its claim in the first lawsuit. Rejecting this argument, the court concurred with the trial
judge in the first case and gave the defendant “no allowances for having sat on the information” for
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