Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

marginal relevance, the court denied the protective order but mandated the parties to share equally
in any further discovery costs.
� Nacco Materials Handling Grp., Inc. v. Lilly Co., 2011 WL 5986649 (W.D.Tenn. Nov. 16, 2011).
In litigation arising from the defendant’s repeated illegal access to the plaintiff’s "secure dealer"
website, the plaintiff sought sanctions for the defendant’s discovery misconduct. After preliminary
forensic analysis of 35 of the defendant’s computers, the plaintiff discovered that the defendant did
not issue a company-wide litigation hold and left collection up to individual employees absent
managerial oversight. Additionally, the plaintiff found that the Rule 30(b)(6) deponent produced by
the defendant did not review any of the particular files in question and was improperly prepared for
deposition. Finding the defendant ‘s "woefully inadequate" preservation and collection methods
negligent at minimum, the court found sanctions appropriate, but limited them due to plaintiff’s
failure to substantiate the amount of prejudice suffered from the defendant’s misconduct. As such,
the court awarded monetary sanctions related to the cost of the previous forensic examination,
additional imaging of company computers and reasonable fees and costs the plaintiff incurred in
the motion.
� United States v. Carell, 2011 WL 2078023 (M.D. Tenn. May 26, 2011). In this False Claims Act
litigation involving alleged improper Medicare billing, both parties requested additional discovery.
The government asserted that during more than fourteen months of discovery, the defendants
failed to produce a single electronic document and neglected to implement a litigation hold.
Determining the government’s timeline was too broad and the defendants’ too narrow, the court
established a relevant timeline to be three years after the sale in question and two years after the
defendants’ possessed an e-mail system, and ordered the defendants to conduct and certify an
adequate search for responsive documents. Declining to rule on the defendants’ alleged failure to
preserve absent a motion for sanctions, the court turned to the defendants’ request for 37 e-mails
(or e-mail strings) withheld by the government as work product and ordered the government to
submit the e-mails for an in camera review.
� Barnes v. CUS Nashville, LLC, 2010 WL 2265668 (M.D. Tenn. June 3, 2010). In this slip and fall
tort action, the defendant moved to compel ESI and for a trial continuance to resolve the protracted
arguments between parties regarding the plaintiff’s and witnesses’ Facebook photos and e-mails.
The magistrate judge found that the defendant’s mishandling of a Facebook subpoena caused a
major delay in discovery, while also noting that "[c]ooperation on the part of both parties could have
prevented this delay." To resolve this discovery issue expeditiously, the magistrate judge stated he
was willing to create a Facebook account. If the witnesses would accept the judge as a Facebook
"friend" "for the sole purpose of reviewing photographs and related comments in camera," he would
"promptly review and disseminate any relevant information to the parties" and then close the
account. Additionally, the judge reviewed submitted materials from the plaintiff’s Facebook account
and deemed one message, seven pictures and the accompanying metadata relevant to the case.
Ultimately, the judge granted the continuance but denied the motion to compel ESI for lack of
jurisdiction.
� John B. v. Goetz, 2008 WL 2520487 (Tenn. June 26, 2008). In this class action litigation, the
defendants filed a petition for mandamus seeking relief from two discovery orders issued by the
district court which ordered the state defendant to allow the plaintiffs’ computer expert to examine
and forensically image and examine the computer systems of 50 key defendant custodians,
including privately owned computers, in order to determine if information was removed, impaired or
compromised, and to ensure preservation. The court granted the defendants’ petition in part,
setting aside the portion of the order that required forensic imaging of hard drives and other
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