Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Whitlow v. Martin, 2009 WL 33381013 (C.D. Ill. Oct. 15, 2009). In this employment dispute, the
plaintiff subpoenaed a non-party seeking production of electronic information relevant to the
defendants’ employment practices. The non-party’s numerous objections to the subpoena included
that the requests were not reasonably likely to lead to the discovery of admissible evidence, could
be obtained from more convenient sources, sought not reasonably accessible documents, and
were overly broad and unduly burdensome. The non-party claimed complying with the subpoena
would cost hundreds of thousands of dollars and would take more than two years to complete
because several Microsoft® Exchange Servers and 200 to 300 file servers located across the state
would have to be searched. Acknowledging the non-party status as a significant factor in
determining whether a subpoena presents an undue burden, the court applied a relative hardship
test to determine if the burden outweighed the value of the produced material. After considering
such factors as relevance, need and particularity, the court, while slightly modifying the production
requirements, ordered the non-party’s compliance with the plaintiff’s subpoena.
� Coburn Group, LLC v. Whitecap Advisors LLC, 2009 WL 2424079 (N.D. Ill. Aug. 7, 2009). In
this breach of an oral contract dispute, the defendant requested the return of a half-page long email
the defendant claimed was protected work product. In opposition, the plaintiff made several
arguments including that the e-mail was not protected and that, if it was, the inadvertent production
waived protection. After determining the e-mail constituted work product, the court considered the
waiver issue under Fed.R.Evid. 502. The court interpreted the "inadvertent disclosure" portion of
Rule 502 as asking whether the party intentionally produced a privileged or work product protected
document and found the defendant did not intend to produce the e-mail. Next, the court considered
prior case law regarding what constituted "reasonable steps" to prevent an inadvertent disclosure.
The court discussed the defendant’s thoroughly documented review process and noted that in this
case only three documents slipped through the review of 72,000 document pages. Finding that
Rule 502 would have no purpose if the inadvertent production of a single privileged document
deemed the document review process unreasonable, the court granted the defendant’s motion and
ordered the plaintiff to return all copies of the e-mail.
� United States v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009). In this unlawful materials
prosecution, the Government subpoenaed the Internet service provider (ISP) seeking the contents
of electronic communications, including previously opened or sent e-mail that belonged to the
defendant. After the ISP failed to produce e-mails that had been stored for fewer than 181 days,
the Government moved to compel production of the e-mails’ content. The ISP argued the
information sought required a warrant. Analyzing the issue using the Stored Communications Act
(SCA), the court determined the ISP must comply with the Government’s subpoena if the e-mails
are held or maintained solely to provide the customer storage or computer processing services.
The court also determined that previously opened e-mails stored by the ISP for web-based e-mail
systems—as distinguished from other e-mail systems—are not in "electronic storage," which is
defined by the Wiretap Act as storage incidental to electronic transmission and for the purposes of
backup protection of the e-mail. Based on this finding, the court ordered the ISP to comply fully
with the Government’s subpoena.
� Plunk v. Village of Elwood, IL, 2009 WL 1444436 (N.D.Ill. May 20, 2009). In this civil rights
action, both parties filed a "slew of pretrial motions." The defendants argued the court should bar
the plaintiffs’ expert from testifying unless discovery was re-opened. The plaintiffs requested an
examination of the defendants’ computer system by their expert to determine if any deleted ESI
was backed up. The plaintiffs also sought default judgment sanctions based on the defendants’
destruction of an audio recording, failure to preserve data on computers and hard drives, and
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