Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

should have provided the substance of the report to the defendant. The court further noted that all
the parties had behaved poorly by engaging in "procedural wrangling" during discovery, resulting in
an electronic discovery dispute that "has become the sideshow which eclipses the circus." The
court ordered the third party to submit its billing records but reserved decision on the motion until
the end of the case consistent with the determination of the sanctions motion.
� Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. Apr. 14, 2009). In
this patent litigation, the defendants moved for a hearing on sanctions for spoliation alleging the
plaintiffs intentionally or recklessly destroyed backup tapes. Opposing the motion, the plaintiffs
denied misconduct claiming they preserved electronic records pursuant to their standard operating
procedures but admitted they did not halt all backup tape recycling. Thus, the court determined that
potentially relevant evidence was destroyed after the duty to preserve arose. However, the court
also determined the backup tapes were inaccessible and there is no duty to preserve inaccessible
backup tapes beyond a company’s normal retention period unless the Zubulake exception applies.
The Zubulake exception requires the preservation of backup tapes containing documents of "key
players" if the information is not otherwise available. Zubulake v. UBS Warburg, LLC, 220 F.R.D.
212 (S.D.N.Y. 2003). The court granted the defendants’ motion and ordered a hearing to determine
whether the Zubulake exception applies and, if so, whether the plaintiffs acted with the requisite
culpability and whether the spoliated evidence was relevant.
� Technical Sales Assocs., Inc. v. Ohio Star Forge Co., 2009 WL 728520 (E.D.Mich. Mar. 19,
2009). In this sales commission dispute, the plaintiff sought sanctions alleging evidence destruction
and the defendant filed a motion for contempt arguing the plaintiff violated a computer forensic
examination order by breaching its confidentiality provisions. The motions were premised on a
forensic examination of the defendant’s computer which revealed the deletion of approximately
70,000 files. Denying the defendant’s motion for contempt, the court found that the stipulated order
protected the "discovery of actual data, not the absence of data." (Emphasis in original.)
Addressing the plaintiff’s motion, the court outlined a timeline of events to determine when the duty
to preserve arose. Based on this timeline, the court concluded that the timing of the destruction
appeared "more than coincidental" since it occurred at about the same time the forensic
examination was requested. The court granted the plaintiff’s motion in part by determining
monetary sanctions for the cost of the forensic examination appeared to be appropriate, but
postponed a final determination as to the amount of sanctions and a potential adverse jury
instruction until trial when the substantive harm caused by the defendant is known.
� Laethem Equipment Co. v. Deer and Co., 2008 WL 4997932 (E.D.Mich. Nov. 21, 2008). In this
ongoing breach of contract dispute, inter alia, the defendant sought production of electronically
stored information (ESI) and an order establishing waiver of the attorney-client privilege based on
plaintiffs’ alleged discovery misconduct. The defendant argued that the plaintiffs withheld relevant
e-mails, were untruthful in past discovery responses and waived privilege by inadvertently
disclosing two disks. Opposing the motion, the plaintiffs argued they had properly responded to
each of the defendant’s requests and that additional production would be an undue burden. As
jurisdiction was based on diversity of citizenship and absent objection from either party, the court
analyzed the privilege waiver issue under new Fed.R.Evid. 502(b). The rule establishes that
disclosure does not operate as a waiver if: (1) the disclosure was inadvertent, (2) reasonable steps
were taken to prevent disclosure and (3) reasonable steps were taken to rectify the error. Finding
each of these criteria satisfied, the court held that privilege was not waived. The court noted that
Fed.R.Evid. analysis does not take into consideration alleged discovery abuses, focusing instead
on the disclosure of the privileged information itself.
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