Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

“cookie anomaly” as a technical glitch not confined to entries from the plaintiff’s IP address.
Weighing this evidence, the court determined evidence exclusion was not warranted as “[a]bsent
more detailed evidence or expert testimony” it could not determine if the “cookie anomaly”
undermined the authenticity of the defendant’s log records.
� State v. Butler, 2005 WL 735080 (Tenn. Crim. App. Mar. 30, 2005). In a case involving child
pornography allegations, the state appealed from an order requiring it to provide the defendant with
a copy of the defendant’s hard drive, along with copies of the alleged child pornography that
formed the basis for the state’s case. The state argued that it could not allow defense counsel to
take a copy of the computer hard drive because a state sexual exploitation statute did not contain
any exemption for defense counsel to be given child pornography. The state also declared that it
would accommodate counsel and its computer experts by allowing them to examine a mirror image
copy of the hard drive while it remained in the state’s custody. On appeal, the court affirmed the
trial court’s order, holding that the defendant was entitled to a copy of the hard drive. The court
further noted that providing the alleged pornographic evidence to defense counsel under a court
protective order did not violate the state’s “sexual exploitation of a minor” statutes.
� Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550 (W.D.Tenn. 2003). In a trade
secret violation suit, the defendant moved for the production of approximately 996 network backup
tapes and argued that the plaintiff should bear production costs. The defendant also requested that
the court appoint a special master to aid in the discovery process. The plaintiff objected to the
defendant’s requests stating that the request was “unduly burdensome because extracting the data
from the backup tapes and reviewing it for relevance and privilege will be astronomically costly.”
The parties did not dispute the relevance of the electronic data at issue. Agreeing that producing
the backup data as a whole would be burdensome on the plaintiff, the court applied the Rowe 8
factor cost-shifting test to determine burden and cost. Finding that the majority of the factors
favored shifting a portion of discovery costs to the defendant, the court outlined a detailed
discovery protocol. Pursuant to Fed.R.Civ.P. 53(b), the court appointed a special master to
oversee discovery and to review the data. The court also ordered the plaintiff’s vendor to “search
the extracted data using the keywords identified in Appendix A to this order or otherwise agreed
upon by the parties or directed by the special master” and to “produce to [the defendant] a
complete list of the files identified by the backup tape restoration keyword search.”
� Delozier v. First Nat’l Bank of Gatlinburg, 109 F.R.D. 161 (E.D. Tenn. 1986). “A court will not
shift the burden of discovery onto the discovering party where the costliness of the discovery
procedure involved is entirely a product of the defendant’s record-keeping scheme over which the
plaintiff has no control.”
Seventh Circuit – State and Federal Cases
� Heraeus Kulzer, GMBH v. Biomet, Inc., Nos. 09-2858, 10-2639 (7th Cir. Jan. 24, 2011). In this
foreign trade secrets litigation, the plaintiff appealed the district court’s denial of its request for
discovery in U.S. federal district court pursuant to 28 U.S.C. § 1782. Noting that discovery in the
federal court system is broader than in most foreign countries, the court listed several potential
abuses that could warrant a denial – including, inter alia, harassing the opposing party, “swamping
a foreign court with fruits of American discovery” and gaining an arbitrary advantage through the
lack of reciprocity in access to broad U.S. discovery. The court determined the defendant failed to
demonstrate any such abuses, finding it was not “seeking to circumvent German law” and
successfully demonstrated a need for extensive discovery for aid in its foreign lawsuit. Next,
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