Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

equested documents previously produced in a hard copy. Denying the request for sanctions, the
court affirmed the defendant’s argument that no duty existed to also produce electronic copies
when the initial request merely sought “documents” – making no mention of digital information.
Instead the court stated the fact that the defendant “ultimately agreed to do so and did is the
occasion not for sanctions, but for some measure of commendation.” After disposing of the motion,
the court further admonished the plaintiff for prematurely seeking sanctions under Fed.R.Civ.P. 37
in a brief that lacked analysis, was devoid of supporting case law and asked for documents
“concededly obtained without any court intervention.”
� Jones v. Bremen High Sch. Dist. 228, 2010 WL 2106640 (N.D.Ill. May 25, 2010). In this
employment discrimination litigation, the plaintiff sought sanctions alleging the defendant failed to
preserve relevant documents and intentionally concealed its document retention policy to hide its
lack of compliance. Detailing the defendant’s preservation efforts, the court found it “undisputed”
that the defendant failed to place a litigation hold in effect when it learned the plaintiff filed charges
in October 2007. Instead, the defendant directed just three employees – whose conduct was in
question in the lawsuit – to search through their e-mail and cull out relevant documents without
supervision of outside counsel. Notably, all employees in the district could permanently delete emails
by “double-deleting” them from their computers, and the e-mails would then be automatically
erased from the backup system in thirty days. Despite finding that the defendant “clearly breached
its duty to preserve relevant documents,” the court determined the actions were not willful and
declined to impose an adverse inference instruction. However, the court found the defendant’s
behavior grossly negligent, and precluded the defendant from arguing that an absence of
discriminatory statements evidenced that no such statements were made and allowed for
additional depositions at cost to the defendant.
� OCE N. Am., Inc. v. Brazeau, 2010 U.S. Dist. LEXIS 25523 (N.D.Ill. Mar. 18, 2010). In this trade
secrets litigation, the plaintiff objected to the magistrate judge’s recommendation that denied an
adverse inference sanction for the defendants’ admitted failure to preserve instant messages.
Recognizing that no dispute existed as to whether the defendants used the instant-messaging
system and failed to save messages until after the suit was filed, the court determined that the
defendants breached the duty to preserve. However, the court denied an adverse inference
sanction finding an absence of evidence that the defendants acted with “willfulness, bad faith or
fault.” The court further concluded that even if there had been evidence of the defendants’
culpability, the plaintiff failed to prove prejudice as a result of the spoliation since the missing
messages did not contain the “smoking gun” regarding the misappropriation claim.
� Mintel Int’l Group, Ltd. v. Neergheen, 2010 WL 145786 (N.D.Ill. Jan. 12, 2010). In this
employment litigation, the plaintiff sought sanctions up to and including default judgment based on
the defendant’s alleged spoliation. The plaintiff argued that the defendant failed to preserve the
hard drive of a company-issued laptop by using programs on the computer to destroy metadata
and overwrite files. The defendant, whose use of the computer consisted of turning on the
computer, accessing the Internet and allowing an automated defragmentation program to run,
claimed his actions were not prohibited and did not result in the destruction of relevant evidence.
Relying on expert testimony, the court found that any programs on the laptop that would have
destroyed metadata, such as antivirus software, were not user initiated. The court held that the
defendant’s destruction of any evidence was unintentional, resulting from typical computer use
“rather than a pattern that is easily recognized by forensic experts as spoliation.” (Emphasis in
original.) Thus, the court found sanctions were not warranted and denied the plaintiff’s motion.
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