Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

plaintiff’s claims and the hard drives and said the specific protocol and search terms established by
the trial court made the defendants’ arguments meritless.
� Bennett v. Martin, II, 2009 WL 4048111 (Ohio App. 10 Dist. Nov. 24, 2009). In this employment
dispute, the defendants appealed the trial court’s judgment requiring production of forensic copies
of their computer hard drives to the plaintiff. The trial court concluded that the forensic imaging was
a reasonable solution “given defendants’ consistent intransigence to providing discovery materials.”
On appeal, the court noted privacy and confidentiality concerns must be weighed, but the "scales
tip in favor" of compelling forensic imaging when the requesting party can demonstrate discovery
failures or discrepancies. The court found the defendants engaged in outright defiance of court
orders and "adopted a lackadaisical and dilatory approach to providing discovery." Based on the
defendants’ misrepresentations, willful disregard of discovery rules and history of noncompliance
with court-ordered discovery requests, the court determined the trial court did not abuse its
discretion in ordering production of forensic copies.
� Reckley v. City of Springfield, Ohio, 2008 WL 5234356 (S.D.Ohio Dec. 12, 2008). In this
employment litigation, the defendant produced five e-mails of which it later claimed were protected
by the attorney-client privilege and inadvertently produced. Therefore the defendant sought return
of the e-mails and plaintiff argued that the production waived the privilege. Applying Fed.R.Evid.
502(b), the court held that privilege was not waived. The court noted that at least some of the
inadvertently disclosed e-mails were labeled “attorney-client privileged” and that the defendant took
prompt steps to claim privilege and seek return of the e-mails after they were disclosed. The court
also noted that the disclosure took place in the context of electronically stored information; a
context particularly intended to be addressed by Rule 502.
� State ex. rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 2008 WL 5157733 (Ohio
Dec. 9, 2008). In this litigation, the plaintiff filed an action seeking a writ of mandamus to compel
the defendant to recover the content of requested e-mails that had been deleted. The plaintiff
argued that a public office has an obligation to maintain certain records, such as the records at
issue here, and make them available for inspection and copying under the Public Records Act.
Finding substantial gaps in the responsive e-mails provided by the defendant, the court determined
that a reasonable inference was raised that at one time, additional responsive e-mails were deleted
in violation of the defendant’s document retention schedule. Additionally, through an affidavit of a
computer expert specializing in forensic data-recovery services, the plaintiff established that there
was some likelihood that the recovery of the deleted e-mails would be successful. Therefore, the
court also concluded the defendant should be required to attempt to restore deleted e-mails. The
court ordered the defendant to bear the expense of the forensic analysis but stated that the
“recovery efforts need only be reasonable, not Herculean.”
� Superior Prod. P’ship v. Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184 (S.D. Ohio Dec.
2, 2008). In this predatory pricing case, the plaintiff sought production of electronic documents in
native format that were previously produced in hard copy. The defendants opposed native
production, arguing their computer system did not maintain metadata and therefore no purpose
would be served in native production. Citing Fed.R.Civ.P. 26’s preference for native format
production, the court ordered the defendants to produce the documents natively, finding benefit in
the ease at which electronic documents can be stored and manipulated during the litigation
process.
� Moore v. Abbott Lab., 2008 WL 4981400 (S.D.Ohio Nov. 19, 2008). In this employment
discrimination case, the plaintiff filed a motion to compel discovery, seeking documents
unrestricted by time frame, geographic area or number or type of job applicants. The defendant
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