Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

database contained proprietary information, the magistrate required the plaintiff to designate any
extracted data as “Outside Counsel Only” information.
� Williams v. Du Pont, 119 F.R.D. 648 (W.D. Ky. 1987). The discovering party must bear costs of
data production and reimburse responding party for a portion of its expense in assembling the
database.
Michigan
� Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. Jan. 2012). In this slip and
fall case, the defendants sought a court order granting it access to the plaintiff’s entire Facebook
account. Citing McMillen v. Hummingbird Speedway, Inc. and Romano v. Steelcase, Inc., the
defendants asserted that nonpublic Facebook postings are generally not protected by any privacy
privilege. Next, the defendants attempted to show that the private portions sought were reasonably
calculated to lead to admissible evidence. The defendants argued that publicly available photos of
the plaintiff standing at a birthday party in Florida—while holding a small dog—were inconsistent
with her claims of inability to work and enjoy life. While the court agreed with defendants that there
is no such thing as a social media privilege, it noted that the defendant “does not have a
generalized right to rummage at will through information that Plaintiff has limited from public view.”
Distinguishing McMillen and Romano, the court ruled that the defendant’s preliminary showing was
not enough to show any inconsistency with the plaintiff’s damage claims.
� Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., 2011 WL 1002835 (E.D. Mich. Feb. 17,
2011). In this discovery dispute, the plaintiff moved for a protective order in response to the
defendant’s informal request for additional information. Having produced more than 1.79 million
pages of documents during discovery, along with 84,000 pages of documents from its non-party
Japanese parent company, the plaintiff argued the order was necessary to prevent producing its
record retention policies and data map, and conducting broad system-wide searches along with
searches of systems not readily accessible. Although the court agreed the backup systems were
not readily accessible, it found that the defendant had not requested this information or the systemwide
searches. Instead, the defendant requested the plaintiff’s backup policies, tracking records,
requests for restores and confirmation that relevant data sources of 41 employees had been
searched. Regarding the data map, the court noted that counsel must be knowledgeable about
their client’s computer systems and ESI at the onset of litigation pursuant to Fed.R.Civ.P.
26(a)(1)(ii); thus, producing this information should not be an undue burden. Accordingly, the court
denied the protective order.
� Whited v. Motorists Mut. Ins. Co., 2010 WL 3862717 (E.D. Mich. Sept. 28, 2010). In this litigation
involving claims for insurance benefits, the defendants moved for dismissal of the plaintiff’s claims
and for summary judgment on multiple counterclaims alleging, inter alia, fraud and unjust
enrichment. During the “acrimonious” discovery process, substantial allegations that some
documents were falsified led the court to order the plaintiff to surrender all computers for forensic
examination. Although the court warned the plaintiff that her conduct was perilously close to
willfulness and bad faith and forbade anyone from using the computers, the forensic examination
revealed evidence of extensive tampering including the replacement of a hard drive, deletion of
1,300 files and backdating of dozens of documents. Upon review of this evidence, the court found
the plaintiff’s inherently suspect explanations strained credulity and undermined her claims of good
faith. Noting that the intentional deletion of files alone was sufficient to support a finding of
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