Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

defendants were not entitled to reclaw the material. The court also denied sanctions, finding the
plaintiff made no misrepresentations regarding the privileged documents.
� Alford v. Rents, 2010 WL 4222922 (S.D. Ill. Oct. 20, 2010). In this employment discrimination
litigation, the court reviewed the magistrate judge’s recommendation advocating sanctions against
both defendants’ counsels individually for discovery misconduct. Upon review of the record, the
court found substantial and repeated violations of both the Federal Rules of Civil Procedure and
the Illinois Rules of Professional Conduct based on the filing of over 14 discovery-related motions,
incessant “accusation-laced, uncivil correspondence,” the need for judicial supervision of
depositions and the appointment of a special master to decide discovery disputes. In light of
counsels’ “scorched-earth approach to discovery” in which the attorneys “embarked upon a course
entailing a conscious effort to maximize litigation and to make certain [it] was as time-consuming,
difficult, unpleasant, and expensive as possible,” the court adopted the magistrate judge’s
recommendation and held the two attorneys personally liable for sanctions in the amount of $3,750
each, to be paid without reimbursement from the law firms or clients.
� DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010). In this breach of contract litigation,
the defendants objected to the plaintiff’s assertion of attorney-client privilege and work product with
regard to nine e-mails and attachments. The plaintiff argued he exercised due diligence in
asserting and maintaining privilege in advance of litigation and throughout the discovery process,
while the defendants contended the plaintiff waived privilege and failed to provide sufficient
information to determine whether the communications were privileged or protected. Addressing the
six e-mails sent via the plaintiff’s person e-mail address, the court found they were likely pulled
from the company server and added to the external hard drive that was given to the defendants’
counsel. Referencing Fed.R.Evid. 502(d), the court noted that the Stipulated Protective Order
protected the inadvertent production of privileged material and thus found that privilege was not
waived. Turning to the three e-mails sent by the plaintiff to his attorney via the work e-mail address,
the court determined that the employer believed privilege was not waived by communicating using
work e-mail addresses on work-issued computers. Thus, privilege was not waived with respect to
these three e-mails.
� Peal v. Lee, 2010 WL 3001338 (Ill. App. 1 Dist. July 30, 2010). In this defamation action, the
plaintiff appealed the circuit court’s dismissal with prejudice following his failure to comply with
discovery requests and intentional destruction of evidence. On appeal, the court affirmed the circuit
court’s order based on review of testimony from the defendants’ computer forensic expert that
indicated the plaintiff obtained a new hard drive and “used seven different data ‘wiping’ programs to
permanently delete data” from his personal computer just days prior to its surrender. Forensic
investigation of the personal computer also indicated the plaintiff failed to produce as many as five
external storage devices that may have contained discoverable information. In affirming the order’s
severity, the court berated the plaintiff for seeking “to cover up his electronic tracks by subterfuge”
and making an argument of “pure pettifoggery” on appeal, characterizing his actions as “the
personification of bad faith” and a “deliberate, contumacious and unwarranted disregard of the
court’s authority.” Finally, the court denied the defendant’s request for monetary sanctions finding
dismissal an adequately severe sanction.
� Chapman v. Gen. Bd. of Pension and Health Benefits of the United Methodist Church, Inc.,
2010 WL 2679961 (N.D. Ill. July 6, 2010). In this litigation arising from claimed violations of the
Americans with Disabilities Act, the plaintiff sought punitive sanctions for discovery noncompliance
alleging the defendant engaged in a “flagrant violation of both the letter and the spirit of Discovery
rules” by unreasonably delaying production of electronic copies and accompanying metadata of
175