Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

with the defendant bearing the costs unless able to demonstrate the information should have been
produced by the original search.
� Muro v. Target Corp., 2007 WL 3254463 (N.D.Ill. Nov. 2, 2007). In this suit, the plaintiff alleged
the defendants sent unsolicited credit cards in the mail which violated the Truth in Lending Act and
sought class-action certification. Several discovery disputes ensued, involving questions regarding
the discoverability of the defendants’ litigation hold notices and adequacy of the defendants’
privilege log. The court upheld the magistrate judge’s finding that the defendants’ litigation hold
notice was protected by the work-product doctrine. Relying upon Upjohn Co. v. United States, 449
U.S. 383 (1981), the court found that Fed. R. Civ. P. 26(b)(5)(A) does not require privilege logs to
separate entries of multiple e-mails within the same string and that a single e-mail of a forwarded
chain to counsel is protected by the attorney-client privilege. However, the court found serious
defects in the defendants’ privilege log because it failed to identify all of the recipients of some
messages and the plaintiff was unable to assess whether recipients fell within the sphere of
corporate privilege. The log also used “sometimes-cryptic job titles to explain the recipients of emails,”
which made it difficult to assess the applicability of privilege. The court allowed the
defendants ten days to submit a revised privilege log addressing the above defects so the court
could perform an in camera review and determine privilege protection.
� APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D.Ill. Oct. 12, 2007). The plaintiff
in this case brought suit against a former employee for trade secret misappropriation and breach of
contract. Days after receiving the complaint, the defendant discarded his computer, resulting in the
plaintiff moving for default judgment, sanctions and attorney’s fees. Relying on its inherent power
and Fed.R.Civ.P. 37, the court refused to enter default judgment but affirmed the plaintiff’s motion
for sanctions, finding the defendant acted in bad faith. The court also ordered the defendant to pay
reasonable attorneys fees and costs associated with the plaintiff’s motion, third party discovery
required due to the computer destruction, and retention of the computer expert.
� Modern Eng’g, Inc. v. Peterson, 2007 WL 2680563 (C.D.Ill, July 16, 2007). In this employment
contract dispute, the plaintiff alleged the defendant e-mailed sensitive information to the plaintiff’s
largest competitor in an attempt to gain employment with that competitor. The plaintiff sought
production of all electronic communications sent by the defendant to certain third parties and the
defendant objected, arguing they did not belong to him and were in the possession of his current
employer. The court held that the defendant was not obligated to produce documents in the care,
custody or control of his employer, but ordered him to produce responsive documents that were in
his own care, custody or control, regardless of the ownership of those documents.
� In re Kmart Corp., 2007 WL 2198309 (Bkrtcy.N.D.Ill. July 31, 2007). In a Chapter 11 bankruptcy
proceeding, Global Property Services, Inc. (Global) filed an administrative claim against the debtor,
Kmart Corporation, for breach of contract and tortuous misconduct. Shortly thereafter, Global
issued its first discovery requests and sought assurances that all responsive documents would be
preserved and produced. After months of struggling to obtain responsive documents from Kmart,
Global motioned the court to sanction Kmart for spoliation and violation of a previous production
order. Kmart filed a response to the motion, noting that there was no contention Kmart had
destroyed documents intentionally or in bad faith and that Global had failed to identify any “trigger
date” for Kmart’s duty to preserve evidence. The court applied a three step analysis requiring
culpability, an obligation to preserve, and that the other party suffered prejudice as a result before
ordering sanctions. The court reasoned that where the duty to preserve information is well known
and the party fails to do so, they will be charged with a higher culpability. The court held that even
though Kmart had a duty to preserve the relevant electronically stored information as of the date of
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