Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

protected because they disclosed the fact that the defendant was consulting with its attorney. The
court found the defendant’s position showed "an ill-advised stubbornness" and "a poor
understanding of the privilege’s reach." Though the court did determine that some of the
defendant’s documents were privileged, others simply mentioned legal matters or representation
but were devoid of legal content. In line with its threat to sanction further discovery misdeeds, the
court sanctioned the defendant $1,000 for failing its duty of candor to the court. In an extended
conclusion, the court admonished both parties for showing "reprehensible gamesmanship" instead
of civility, urging responsible practitioners to adopt the latter.
� Amira-Jabbar v. Travel Servs. Inc., 726 F.Supp.2d 77 (D. Puerto Rico July 28, 2010). In this
racial discrimination litigation, the plaintiff argued the defendant was liable for an allegedly racist
comment that an employee posted on Facebook as the defendant allowed its employees to post
photos and comments on the website during company time for company purposes, and did not
have a firewall or software in place to prevent employees from using the site. The defendant
moved for summary judgment, asserting it was not responsible for the incident because it had no
ownership or control over the Facebook account, and did not authorize the plaintiff’s co-worker to
post comments. Finding the defendant responded promptly and appropriately by blocking site
access for all office computers after receiving a complaint from the plaintiff, the court held the
plaintiff’s allegations were insufficient to establish a hostile work environment claim and granted
summary judgment for the defendant.
� Rodriguez-Torres v. Gov’t Dev. Bank of Puerto Rico, 2010 WL 174156 (D.Puerto Rico Jan. 20,
2010). In this discrimination litigation, the plaintiffs sought sanctions and production of electronically
stored information. The plaintiffs argued that the requested ESI, unlike hard copy documents,
contained relevant information pertaining to authenticity, reliability and chain of custody in the form
of native format files and metadata. In opposing these motions, the defendants claimed the ESI
request was overbroad and would produce thousands of nonresponsive, confidential and privileged
documents. Following submission of an independent report approximating the ESI production cost
to be $35,000, the court held that under Fed.R.Civ.P. 26(b)(2), “$35,000 [was] too high of a cost for
the production of the requested ESI in this type of action” and determined the ESI was “not
reasonably accessible.” Furthermore, the court found the plaintiffs’ argument that e-mails are more
likely to lead to inappropriate comments was not sufficient to demonstrate good cause. Rather, the
court determined the plaintiffs’ “request [was] merely a fishing expedition,” which is contrary to the
point of discovery.
First Circuit – State and Federal Cases
� Koken v. Black & Veatch Constr., Inc., 426 F.3d 39 (1st Cir. 2005). The defendants appealed a
denial of monetary sanctions for alleged discovery violations relating to a product liability and
breach of warranty lawsuit. In particular, the defendants claimed its document review costs were
increased by the plaintiff’s delay and/or failure to provide electronic versions of damage calculation
documents. Although noting the defendants were entitled to the discovery and the plaintiff made
the process “more difficult than it need be,” the district court declined to impose sanctions. The
district court determined that expert discovery had been delayed at that time and it was “unclear
whether [the plaintiff] was deliberately obfuscating or merely stopped its discovery related expert
activities because of the stay…". On appeal, the defendants argued the district court was incorrect
as it never actually received the documents from the plaintiff. The appellate court noted the only
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