Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� ACS Consultant Co., Inc. v. Williams, 2006 WL 897559 (E.D. Mich. Apr. 6, 2006). The plaintiff
sought a temporary restraining order and a preliminary injunction enjoining the defendants, former
employees of the plaintiff, from violating the terms of employment agreements. Granting the
plaintiff’s motion, the court noted that the defendants failed to return company-issued materials and
electronic media and that the defendants provided third parties with trade secrets and confidential
information. In issuing the order, the court enjoined the defendants “from taking any action to
delete, destroy, damage or ‘wipe clean’ any computer hard drive, including…[company-issued]
laptops and Blackberrys, containing [the plaintiff’s] confidential information or evidence relevant to
this case.” The court also required the defendants to return all of the plaintiff’s property, including
laptops, Blackberries and “other data kept in any form or media.”
� Powerhouse Marks, L.L.C. v. Chi Hsin Impex, Inc., 2006 WL 83477 (E.D. Mich. Jan. 12, 2006).
In response to the plaintiffs’ interrogatories, the defendants produced 1,771 pages of Batesstamped
documents from a database. Claiming this production was “indecipherable” and failed to
adequately answer their interrogatories, the plaintiffs moved to compel complete production of the
database information. In resolving the matter, the court stated the raw data would be more easily
used in conjunction with its corresponding database. The court further determined the defendants
were in the best position to accurately interpret and explain the information. Thus, the court
ordered the defendants to produce the data in a “more usable form”, noting the Federal Rule
Advisory Committee notes specified a party may be ordered to produce information to aid in
interpreting and explaining the data even when the electronic information does not exist in the
format requested.
� DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172 (E.D. Mich. Dec. 22,
2005). In a breach of contract claim relating to the defendant’s NASCAR team, the plaintiff sought
sanctions against the defendant for destroying relevant e-mails. In defending its actions, the
defendant claimed its computer system was set up to delete both internal and external e-mails
automatically, unless affirmative efforts were taken to preserve them. As a result of the automated
deletion, internal e-mails from key custodians were “irretrievably lost.” One key individual testified
he was never instructed to preserve relevant communications, even after the lawsuit commenced.
In considering whether sanctions were justified, a magistrate judge declared “[s]uch normal
procedures for destruction of documents must . . . be suspended when a party is on notice that
they may be relevant to litigation, and the failure to make an adequate search of such documents
before their destruction may be evidence of bad faith.” Although ultimately finding the defendant’s
actions amounted to negligent spoliation and did not show evidence of bad faith, the magistrate
found sanctions would be appropriate and recommended the trial court issue an adverse inference
instruction and an order allowing the plaintiff to present evidence of the spoliation.
� Holt v. Northwestern Mut. Life Ins. Co., 2005 WL 3262420 (W.D.Mich. Nov. 30, 2005). The
plaintiff, an emergency room physician, alleged the defendant, an insurance company, failed to
produce an e-mail that contained an investigative report relating to an insurance dispute. The
plaintiff requested an adverse inference instruction as a sanction for the alleged non-production. At
a hearing, one of the defendant’s employees testified that if the e-mail had contained substantive
information, a copy would have been placed in the claim file and produced during discovery. The
employee further testified it would have been unusual for substantive information to be sent in an
e-mail as such information was typically attached in a memorandum and merely transmitted by email.
Thus, the defendant argued the e-mail was merely an “envelope” for the substantive report –
which was already previously produced to the plaintiff – and not subject to the discovery request.
Citing Zubulake, the court agreed with the defendant and stated, “[A] corporation is not required to
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