Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

ecause the computer expert testified that the copy of the hard drive exactly duplicated the
contents of the hard drive.
� St. Clair v. Johnny’s Oyster & Shrimp, 76 F. Supp. 2d 773 (S.D. Tex. 1999). “[A]ny evidence
procured off the Internet is adequate for almost nothing, even under the most liberal interpretation
of the hearsay exception.”
� Smith v. Texaco, Inc., 951 F. Supp. 109, (E.D. Tex 1997), rev’d on other grounds, 263 F.3d 394
(5th Cir. 2001). Modifying the original state court TRO in a race discrimination case, the court
permitted the moving of certain documents in the ordinary and usual course of business and the
deletion of electronic records in the ordinary and usual course of business, provided that hard copy
records be made and kept.
� American Banker Ins. Co. v. Caruth, 786 S.W.2d 427 (Tex. Ct. App. 1990). Courts can impose
sanctions on parties that fail to comply with electronic discovery requests.
� Pearl Brewing Co. v. Joseph Schiltz Brewing Co., 415 F. Supp. 1122 (S.D. Tex. 1976). In an
antitrust action, the court allowed the defendant to inspect and copy the computer programs and
systems documentation at issue and to depose the plaintiff’s computer experts as to the creation of
the systems.
Sixth Circuit – State and Federal Cases
� Grange Mut. Cas. Co. v. Mack, 2008 WL 744723 (6th Cir. Mar. 17, 2008). In this suit alleging
fraud, the defendant appealed a default judgment and liability award of damages plus attorney’s
costs and fees, arguing abuse of judicial discretion. The defendant purposely delayed discovery,
ignored court discovery deadlines and orders to compel, instructed employees to ignore court
orders and ignored a serious warning from the district judge relating to his continued discovery
misconduct. Based on the defendant’s willful bad faith and the resulting prejudice suffered by the
plaintiffs, the court affirmed the default judgment, “[B]oth to punish the defendant for his egregious
conduct and to deter other litigants who might be tempted to make a mockery of the discovery
process.”
� First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993). “In order to justify
proceeding ex parte…the applicant must do more than assert that the adverse party would dispose
of evidence if given notice.” Instead, the party must demonstrate that the adverse party has a
“history of disposing of evidence or violating court orders…”
Kentucky
� GATX Corp. v. Appalachian Fuels, LLC, 2010 WL 5067688 (E.D. Ky. Dec. 7, 2010). In this
litigation regarding an alleged breach of two leases, the defendant argued the plaintiff intentionally
produced hundreds of documents protected by privilege which resulted in a subject matter waiver
under Fed.R.Evid. 502. Upon review of over 200 produced documents, the court determined that
roughly 25 e-mail communications contained privileged material. In disagreeing with the plaintiff’s
claim that these documents were inadvertently produced, the court found that the plaintiff did not
demonstrate the steps it took to comply with 502(b) as it failed to identify which document(s) it
sought the return of. Noting that attorney-client privilege waiver does not automatically lead to
subject matter waiver, the court found that the relatively low number of privileged documents
produced did not necessarily warrant a finding that the disclosure was intentional. Further, the
court noted that subject matter waiver exists only in cases where a party deliberately discloses
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