Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

drive from a vital computer in the case. The damaged hard drive showed evidence that the
computer casing had been opened and the hard drive removed with a screwdriver. A computer
forensic expert testified that the computer had been tampered with and that because of the
tampering no electronic data could be harvested from the key piece of evidence. The plaintiff
argued that such failure to produce the information and the badly damaged hard drive was evident
of willful, bad faith spoliation. The defendant did not produce any logical explanation for the
damaged computer or the lack of production of the thumb drive and backup servers. The court
agreed with the plaintiff’s argument and found evidence that the hard drive belonging to the
defendant was tampered with before production. The court held that the hard drive was proof of the
defendant’s willful and intentional destruction of evidence and that default judgment was proper
since all parties were substantially prejudiced. Furthermore, the court ordered the defendant to pay
all attorney’s fees and costs.
� Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. Sept. 28, 2006).
The plaintiff sought sanctions against the defendant for bad faith destruction of relevant documents
and e-mails. The defendant in this case was a competitor of the plaintiff in the sporting goods
business. The defendant hired a former employee of the plaintiff after he voluntarily ended his
employment with the plaintiff. When the employee left the company, he forwarded several
confidential documents from the plaintiff’s company e-mail account directly to his personal Yahoo!
account. A computer forensics expert determined the employee opened the documents on his
home computer, and several of the confidential documents were also found on a computer issued
to the employee from his new employer. Upon the filing of the plaintiff’s lawsuit, the employee
cancelled his Yahoo! e-mail account, thereby causing all e-mails stored on the account to be
destroyed and unrecoverable. The plaintiff motioned the court to issue sanctions in the form of
dismissal for bad faith destruction of key documents after litigation commenced. The defendant
argued no knowledge of the stolen trade secrets from the plaintiff and alleged the employee
transferred and deleted the files on his own. The court found the employee destroyed wrongfully
obtained records when he cancelled his personal e-mail account with Yahoo!. The court did not
find enough evidence to prove the defendant willfully and in bad faith supervised or instructed the
destruction of the trade secrets. However, the court did find the defendant negligent in its failure to
preserve relevant evidence from its employee. The negligence by the defendant did not warrant a
dismissal of the case as the plaintiff urged, but the court ruled a negative inference may be allowed
at trial because it “should have done more to detect and preserve relevant data under [the
employee’s] control.”
� Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. Sept. 21, 2006). In a
claim brought by a law student under a state Persons With Disability Act, the plaintiff sought to
examine the defendant’s computer system with her computer forensics expert. The plaintiff claimed
her poor scores on final tests were attributed to faulty software provided by the law school to assist
the plaintiff with her vision disability while taking tests. The plaintiff originally sought the production
of several work orders from the law school relating to the software but the school changed
computer systems and during the switch some documents were deemed unrecoverable. The
plaintiff argued the defendant used the system changeover as an excuse not to produce relevant
documents. The defendant argued it already produced every work order they were able to recover
and the other work orders could not be retrieved from the old computer system. The court found for
the defendant, stating “[t]his court is therefore loathe to sanction intrusive examination of an
opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be
withholding discoverable information.”
155