Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

privileged information in an attempt to gain a tactical advantage and, because the plaintiff did not
use privilege as both a “shield and a sword,” subject matter waiver did not extend to documents
withheld in the privilege log.
� Mohrmeyer v. Wal-Mart Stores E., L.P., 2009 WL 4166996 (E.D. Ky. Nov. 20, 2009). In this "slip
and fall" personal injury action, the plaintiff sought sanctions against the defendant based on
alleged spoliation of certain materials including surveillance video and a restroom maintenance log.
The defendant argued the log was destroyed in the routine course of business long before it was
made aware of the possibility of litigation. Relying on Fed.R.Civ.P. 37(e), the court found imposing
sanctions on the defendant would be inappropriate because the evidence was destroyed as a
result of routine, good-faith records management practices long before the defendant received any
notice of the likelihood of litigation. Thus, the court denied the plaintiff’s motion for sanctions and
admonished the plaintiff’s lack of inquiry of relevant facts prior to seeking such serious sanctions.
� KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D.Ky. July 22, 2009). In this copyright
infringement action, the plaintiff moved for sanctions in the form of a default judgment or, in the
alternative, an adverse inference instruction for spoliation. The court found that an October 2005
phone call from the plaintiff and the November 2005 filing of a complaint were both notice of
litigation, and that the defendant subsequently failed to preserve potentially discoverable e-mails by
continuing to delete and overwrite data even after the receipt of a preservation letter. The court
held that the defendant’s deletion of data and failure to implement a litigation hold fell beyond the
scope of the routine, good faith operation of an electronic information system and constituted
spoliation. Finding that an adverse inference instruction would redress the spoliation, the court
granted the motion for adverse inference sanctions but denied awarding default judgment.
� In re Classicstar Mare Lease Litig., 2009 WL 260954 (E.D.Ky. Feb. 2, 2009). In this litigation, the
defendant moved for a protective order after the plaintiffs sought reproduction of financial
documents in native format. Previously, the defendant produced 273,000 pages in TIFF format and
claimed that reproduction in native format would be extremely difficult and burdensome as some
information would need to be redacted and older data could be corrupted. The defendant also
argued the first production was in a “reasonably usable format” in compliance with Fed.R.Civ.P
34(b). However, the plaintiffs argued native format would save them “hundreds of hours” and make
the data much more usable as it was complex information and extremely reliant on the reporting
features within the software. Citing an exchange between the parties in which the defendant
agreed to produce material in native format if the plaintiff purchased the software needed to review
the documents, the court ordered the defendant to reproduce the data in native format. The court
shifted the reasonable cost of copying and delivering the second production to the plaintiff as the
defendant had complied with its obligations during the first production.
� Static Control Components, Inc. v. Lexmark Int’l, Inc., 2006 WL 897218 (E.D. Ky. Apr. 5, 2006).
In a patent infringement case, the plaintiff sought production of a copy of a database and offered to
bear the burden of extracting relevant data. The defendant claimed it had already produced
relevant data from after November of 2004 and had given the plaintiff an opportunity to inspect the
database for relevant information pre-dating November 2004. Additionally, the defendant explained
it could not produce relevant records prior to November 2004 as that information was not text
searchable and it required software that was no longer available. The magistrate ordered the
defendant to produce the pre-November 2004 database to the plaintiff in a “reasonably usable
form” stating, “The Federal Rules do not permit [the defendant] to hide behind its peculiar computer
system as an excuse for not producing this information to [the plaintiff].” However, finding the
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