Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Michigan v. Raar, 2008 WL 4228349 (Mich.App. Sept. 16, 2008). In this criminal prosecution, the
defendant appealed his jury trial convictions, including a conviction for using the Internet or
computer system to engage in criminally prohibited communications. The defendant argued the
trial court improperly permitted the government’s expert witness to offer opinions on computer
activity. At trial, the defendant objected to the expert witness’ computer forensics qualifications, but
did not specifically identify a basis for objection. Overruling the objection, the trial court noted the
expert witness had: over 800 hours of training in computer forensics; three years of experience
working in state police computer forensics lab; was a certified member of the International
Association of Computer Specialists; and had performed over 100 computer forensic examinations.
This court held that the trial court did not abuse its discretion in relying on the forensic expert’s
testimony and its determination that the witness had “sufficient ‘knowledge, skill, experience,
training, or education’ in the field of computer forensics.”
� Laethem Equip. Co. v. Deere & Co., 2008 WL 4056359 (E.D.Mich. Aug. 26, 2008). In this breach
of contract and tortious interference with business relationships, inter alia, dispute, the defendant
objected to the magistrate judge’s recommendation that the defendant’s motion to dismiss the
complaint be denied. Seeking dismissal, the defendant alleged irreparable harm due to the plaintiff
intentionally withholding two disks containing electronically stored information and failing to provide
a privilege log despite asserting privilege. Countering, the plaintiff argued the existence of the disks
was disclosed in 2005 and that the defense counsel abused the plaintiff’s inadvertently produced
privileged documents by using them as exhibits. Weighing the factors considered when
determining whether to dismiss a case under either Fed.R.Civ.P 37(b) or 41(b), the magistrate
judge found dismissal to be an inappropriate sanction for the discovery misconduct, citing lack of
bad faith and the availability of less dramatic sanctions. The court adopted the magistrate judge’s
report and recommendation and referred the issue of the appropriateness of alternative sanctions
back to the magistrate judge.
� Flagg v. City of Detroit, 2008 WL 3895470 (E.D.Mich. Aug. 22, 2008). In this ongoing wrongful
death action, the court previously determined text messages of certain city employees were
potentially discoverable and established a protocol under which two designated magistrate judges
would make the initial determination as to their discoverability. In this current dispute, the
defendants sought to prevent discovery from going forward, arguing that the court’s previous order
violated the Stored Communications Act (“SCA”), claiming it wholly precludes the production of
electronic communications stored by a non-party service provider in civil litigation. Rejecting the
defendants’ reading of the SCA, the court held that possession for purposes of requiring production
includes control over the information, which defendants maintained through its contractual
relationship with the non-party service provider. However, the court was willing to modify the
means of production - holding that the third party subpoena was unnecessary and instead the court
ordered the plaintiff to file a Fed.R.Civ.P. 34 production request. See also Flagg v. City of Detroit,
2008 WL 787061 (E.D.Mich. Mar. 20, 2008).
� Cason-Merenda v. Detroit Medical Center, 2008 WL 2714239 (E.D.Mich. July 7, 2008). In this
antitrust litigation, the defendant requested an order under Fed.R.Civ.P. 26(c) requiring the
plaintiffs to share its third party vendor e-discovery costs for discovery already completed. The
defendant supported their motion with several arguments, including: that the Federal Rules of Civil
Procedure do not envision a ruling on cost shifting early in the case; that a previously stipulated
order reserved the unrestricted right for the parties to later seek a cost-shifting order; and that costshifting
is not restricted to “inaccessible data.” Disagreeing with the defendant’s arguments, the
court denied the order. The court stated the Federal Rules “plainly contemplate that a motion for
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