Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

documents belonging to the plaintiff. Two experts – one each for the plaintiff and third party –
analyzed the evidence and presented conflicting testimony regarding whether data was destroyed.
In this “battle of the experts,” the court determined that the plaintiff did not establish that a wiping
program was utilized given the testimony of the third party’s expert, which provided a reasonable
alternative. Based on the court’s unwillingness to violate the privacy interests of the third party, the
court denied the plaintiff’s motion to reconsider.
� GSI Group, Inc. v. Sukup Mfg. Co., 2008 WL 3849695 (C.D.Ill. Aug. 18, 2008). In this intellectual
property litigation, the defendant filed an objection to the magistrate judge’s report and
recommendation, denying the defendant’s motions to dismiss, or in the alternative to compel
production of e-mails. The magistrate cited the lack of clear evidence of willfulness or bad faith by
the plaintiff and the defendant’s failure to present sufficient evidence why further production was
necessary. However, based on the defendant’s good faith attempt to resolve this dispute prior to
bringing it before the court, the magistrate recommended the plaintiff pay the defendant’s
reasonable expenses incurred in bringing the motion to compel. Denying the defendant’s objection,
the court approved the recommendation in full, denying defendant’s motion to dismiss the
complaint and instead ordered the plaintiff to pay reasonable expenses, including attorney’s fees.
� United States v. Kimoto, 2008 WL 2003187 (S.D. Ill. May 8, 2008). In this post-conspiracy
conviction hearing, the defendant filed a motion to dismiss alleging that the government either
failed to provide, or destroyed, digital forensic evidence and relevant e-mail. Specifically, the
defendant claimed approximately 2500 e-mail were missing and further electronic evidence was
intentionally withheld. The government argued that open file discovery was allowed from the
beginning, making “every scrap” of electronic evidence available. Finding the defendant failed to
prove the government acted in bad faith, failed to show the exculpatory value of the evidence was
apparent, and failed to show the evidence could not have been obtained by other reasonably
available means, the court denied the defendant’s motion.
� Peterson v. Union Pacific R.R. Co., 2008 WL 1930453 (C.D. Ill. May 1, 2008). In this wrongful
death litigation, the plaintiffs filed a motion to compel additional discovery and sought sanctions.
The plaintiffs sought additional depositions, alleging that the defendant concealed data or engaged
in spoliation of three potential sources of electronic data. Determining that no discovery abuse
existed, the court found that the plaintiffs failed to diligently pursue the requested information.
Additionally, the court found that additional discovery was not needed at this stage of litigation. The
court ordered the plaintiffs to show why their motion to compel was substantially justified in
response to the defendant’s request for fees associated with opposing the motion.
� Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 902957 (N.D.Ill. April 2,
2008). In this trademark and copyright infringement litigation, the defendant sought production of a
document in its native format with metadata. Arguing against production, the plaintiff asserted the
document in question was previously produced in both .PDF format and in paper format. Finding
no previous specific production format request, the court determined the plaintiff had the option to
produce the document in the form in which it is ordinarily maintained, or in a reasonably usable
form. Additionally, the court stated the defendant “was the master of its production requests [and] it
must be satisfied with what it asked for” – as the original request did not include metadata.
� Autotech Technologies, Ltd. v. Automationdirect.com, Inc., 2008 WL 783301 (N.D.Ill. Mar. 25,
2008). In this trademark infringement litigation, the defendant moved for sanctions claiming
inadequate discovery production due to missing information. Finding the plaintiff complied with the
defendant’s discovery request, the court declined to issue sanctions. The court further ordered the
parties to meet to resolve how the specific information sought by the defendant may be obtained,
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