Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Kelly v. Montgomery Lynch & Assoc., 2007 WL 4412572 (N.D.Ohio Dec. 13, 2007). In this
lawsuit, the plaintiff filed a motion to compel discovery necessary to support a motion for class
certification. The defendant claimed the discovery request was unduly burdensome because the
filing system was not maintained in a searchable format. Finding the defendant did not make a
reasonable inquiry into the discovery request apart from claiming an undue burden, the court
ordered the defendant to comply with the plaintiff’s narrowly tailored discovery request.
Additionally, the court strongly advised the parties to make a sincere attempt at cooperation in the
discovery process. The court further warned the defendant that a failure to comply will result in the
consideration of sanctions.
� United States v. Warshak, 2007 WL 2417407 (S.D.Ohio Aug. 21, 2007). In this criminal matter,
the defendants moved to bar the government from using evidence allegedly obtained in violation of
the attorney-client privilege doctrine. While the government asserted its case was not based on
privileged information, the defendants questioned the government’s apparent decision to segregate
the computers of three in-house attorneys without comprehensively screening other computers for
privileged materials. The defendants also raised concerns with regard to the amount of time a U.S.
postal inspector possessed certain computers containing privileged information. Finding the
defendants’ questions to be well-founded, the court held there were temporal and substantive gaps
that could only be resolved by sworn testimony and ordered an evidentiary hearing to ascertain the
extent to which the government relied on privileged materials to obtain the evidence it intended to
use at trial.
� State of Ohio v. Rivas, 2007 Ohio App. LEXIS 3299 (Ohio.App. July 13, 2007). In a suit where the
defendant challenged his conviction for importuning and attempted unlawful sexual conduct with a
minor, the defendant challenged the trial court’s denial of his request to obtain a copy of the police
department’s hard drive where records of online chats were stored. The defendant argued he was
entitled to review of the transcripts and should not be required to rely on the representations of the
adverse party. The state argued that its interest in safeguarding the details of other investigations
contained on the hard drive outweighed the defendant’s request to have access to the hard drive.
The trial court agreed with the state, but the appellate court reversed that holding, requiring the
state to allow the defendant a reasonable means of verifying the accuracy and completeness of the
transcript to meet the requirements of the right to a fair trial and the right of an accused to confront
the evidence against him. The court suggested the trial court conduct an in camera review to verify
the transcript.
� Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D.Ohio June 12, 2007). In this
case, the plaintiff requested the court enter a discovery order, allowing its computer forensic expert
to search the defendant’s computer systems, network servers, databases and backup tapes for the
last nine years. The plaintiff also sought to compel the re-production of ESI previously produced in
hard copy form and the production of deleted documents. The defendant argued the request for a
forensic examination was not authorized as a matter of course by the Fed. R. Civ. P. amendments
in 2006 and that its production was proper since the plaintiff’s requests made no such production
format specification. The defendant further argued the deleted information sought by the plaintiff
was inaccessible and not relevant. The court found the plaintiff’s request for an intrusive
examination of its opponent’s computer systems was based on mere suspicion that the defendant
may be withholding discoverable information and denied the request. On the production format and
request for deleted documents discovery issues, the court ordered the parties to further meet and
confer.
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