Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

overwritten] well before th[is] lawsuit was filed.” The court denied plaintiffs’ motion for sanctions
finding that the destruction or loss of evidence occurred before defendant had notice of the
litigation and there was no evidence of intentional destruction. Moreover, the court ruled that
“plaintiffs’ perception of the deficiencies of defendants’ electronic record-keeping [was] simply
irrelevant.”
� Yancey v. Gen. Motors Corp., 2006 WL 2045894 (N.D. Ohio July 20, 2006). In a disparate
treatment employment claim, defendant requested that the court exclude certain employee’s hard
drives and e-mails from the definition of “documents” as it related to a magistrate’s discovery order.
Additionally, the defendant argued that although production of the hard drives may generate some
relevant documents, a large amount of data on the hard drive was irrelevant and likely to be barred
under certain privileges. In refusing to exclude the terms from the definition of discovery
“documents”, the court agreed with plaintiffs that the term “encompassed computer hardware,
software, e-mails and ‘computer forensics.’” Further, the court decided that to mitigate any possible
disclosure of privileged information, the defendant must produce a confidentiality log of all possible
documents from the hard drive. Lastly, since “the removal of the hard drives is not an undue
expense for a large corporation such as GM”, the court ordered that they alone bear the costs of
production to plaintiff.
� Kemper Mortgage, Inc. v. Russell, No. 3:06-cv-042 (S.D. Ohio Apr. 18, 2006). The plaintiff
requested instructions on implementing a litigation hold for electronic evidence and demanded cost
shifting for expenses related to the litigation hold. The plaintiff’s computer forensic expert advised
the plaintiff to effect a litigation hold by mirror imaging its server and laptops, which would cost
approximately $4,000, an amount the plaintiff contended the defendant should pay. Denying the
plaintiff’s requests, the court noted the defendant had not imaged the plaintiff’s computers because
of the costs involved and the defendant had not yet made a demand on the plaintiff for a litigation
hold. The court declared, “One of the unexpected costs of using the electronic tool is that it may
become costly to abide by one’s duty to preserve evidence, but that is not a cost which can be
shifted to the opposing party, at least in the absence of a demand for a litigation hold which seeks
court enforcement and/or requests for discovery which can limit the amount of information which
needs to be preserved.”
� Electrolux Home Prods., Inc. v. Whitesell Corp., 2006 WL 355453 (S.D. Ohio Feb. 15, 2006).
The respondents, a non-party subpoenaed by the defendant, petitioned for a certificate of
interlocutory appeal and sought to stay enforcement of a magistrate’s order allowing the defendant
to conduct a forensic review of the respondents’ computer systems. The reviewing magistrate
found the issue was not ripe for appeal and the respondents waived any appeal rights by failing to
raise the issue in their initial appeal. The court declared the enforcement orders took “every
measure to protect” the respondents because the defendant was bearing discovery costs and
discovery was to be conducted on an “attorneys-eyes-only” basis. The court also noted the
attorney-client privilege was not compromised because the respondents’ counsel would have
access to the master data and an opportunity to create a privilege log. The reviewing magistrate
stated, “Respondents have complained throughout this proceeding of the burden being imposed on
them. Instead of lessening that burden by cooperating in discovery, they have fought a Stalingrad
defense costing untold thousands of dollars in attorney fees and providing increased evidence that
they have something to hide.”
� In re OM Group Sec. Litig., 226 F.R.D. 579 (N.D. Ohio 2005). In a shareholder litigation suit, the
plaintiff sought to compel production of e-mails and spreadsheets listed on a privilege log relating
to a committee’s investigation of corporate inventory problems. The defendants asserted that some
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