Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

the defendants continued to destroy documents for several months, including relevant e-mails from
at least eleven company supervisors and officers. In addition, the defendants failed to notify the
court about the situation until four months after they found out about it. Finding that a significant
number of e-mails had been permanently destroyed, the court declared that “it is astounding that
employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining
to issues in this lawsuit, failed to follow [the] Order…which, if followed, would have ensured the
preservation of those e-mails which have been irretrievably lost.” Granting the government’s motion
for sanctions, the court stated that it will preclude the defendants from calling a key employee, who
failed to follow the retention policy, as a fact or expert witness at trial. The court also ordered the
defendants to pay costs relating to the spoliation as well as $2,750,000 in monetary sanctions. See
also United States v. Philip Morris USA Inc., 223 F.R.D. 1 (D.D.C. 2004).
� Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F.Supp.2d 27 (D.D.C. 2004). In a
copyright infringement suit, the court issued an order compelling the defendant to produce
computer servers, which hosted the defendant’s web site and contained records of its users. When
the plaintiffs’ computer expert inspected the servers, he discovered that the vast majority of that
information had been intentionally destroyed after the defendant learned that litigation was
imminent. The expert found that the defendant ran a program, designed to erase electronically
stored information, more than 50 times from a remote location in an attempt to delete all electronic
data from the servers. In spite of the defendant’s attempts, the expert recovered a small amount of
data to support the plaintiffs’ claims. Although the defendant attempted to attack the plaintiffs’
methodologies for extrapolating the number of users and downloads, the court indicated that the
defendant was “in a poor position to attack plaintiffs’ evidence,” noting that “[d]estruction of
evidence raises the presumption that disclosure of the materials would be damaging.” The court
decided not to issue sanctions but instead encouraged the plaintiffs to move for appropriate
sanctions as the case progressed.
� In re Lorazepam and Clorazepate Antitrust Litig. v. Mylan Lab., Inc., 300 F. Supp. 2d 43
(D.D.C. 2004). In a class action antitrust lawsuit, the plaintiff sought to compel discovery of
electronic documents. The defendant objected to the request arguing that the documents had
already been produced. The plaintiff responded, claiming that the unindexed document “dump”
produced on CD-ROM did not meet the defendant’s obligation to match documents with discovery
requests as closely as possible. The court required the plaintiff to take the CD-ROM’s to a
computer forensic or electronic discovery expert before the court would require the defendant to
index the information. The e-evidence expert was to ascertain whether the electronic information
could be read and searched by commercially available software or converted to a format in which it
could be done.
� Bethea v. Comcast, 218 F.R.D. 328 (D.D.C. 2003). Former employee sought to compel the
defendant to allow her to inspect their computer systems to determine whether the defendant
possessed any additional documents that had not yet been produced in discovery. The defendant
argued that the plaintiff should not be allowed to inspect its computers because the defendant had
already produced all unprivileged documents in response to the plaintiff’s discovery requests.
Additionally, the defendant claimed that the plaintiff did not show that relevant material existed on
the computer systems or that the defendant was unlawfully withholding documents. Ruling in favor
of the defendant, the court noted that the plaintiff did not show that the documents she sought
actually existed or that the defendant unlawfully failed to produce them. The court further declared
that mere suspicion that another party failed to respond to document requests was not enough to
justify court-ordered inspection of the defendant’s computer systems.
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