Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

expert. The court also held that an award of sanctions would be unjust because plaintiffs waited
more than seven months before filing the discovery motion.
� Wiginton v. Ellis, 2003 WL 22439865 (N.D.Ill. Oct. 27, 2003). Two days after filing a sexual
harassment class action suit, the plaintiff’s counsel sent the defendant a preservation letter
requesting that all electronic materials and records relevant to the lawsuit be retained. Upon receipt
of this letter, the defendant sent one e-mail to its employees requiring preservation of all
documents relating to the plaintiff. The defendant continued to follow its normal document retention
and destruction policies until several months later when the court entered a preservation order. Email
system backup tapes were destroyed and former employees’ hard drives (including the
plaintiff’s former supervisor) were not saved. The plaintiff sought a motion for spoliation sanctions.
The court found that the defendant had the duty to preserve relevant electronic documents that
were likely to be the subject of discovery requests, had knowledge of this duty, and willfully and
intentionally did not fulfill this duty. Despite this, the court denied the plaintiff’s motion for sanctions,
stating that the extent of the lost electronic documents was not known. The court stated that the
backup data that was preserved and produced by the defendant may perhaps give some insight
into what was destroyed. If the plaintiff’s expert is able to discover relevant documents on the
backup tapes, then the plaintiff will be allowed to renew its motion for sanctions.
� Kucala Enters. Ltd. v. Auto Wax Co., 2003 WL 22433095 (N.D.Ill. Oct. 27, 2003). After
conducting an evidentiary hearing, the magistrate judge in the patent infringement suit Kucala
Enters. Ltd. v. Auto Wax Co., 2003 WL 21230605 (N.D.Ill. May 27, 2003), recommended that the
plaintiff’s claims be dismissed and that attorneys’ fees and expenses attributable to the motion for
sanctions be granted against the plaintiff for destroying computer evidence. The federal district
judge rejected the magistrate’s recommendation that the plaintiff’s claims be dismissed with
prejudice. The magistrate did so despite the fact that the plaintiff used computer software called
"Evidence Eliminator" to delete files the night before a scheduled discovery inspection. The district
judge stated that the interest of justice would be best served by adjudicating the claim and
counterclaim at issue. The court upheld the magistrate’s recommendation that the plaintiff bear the
expenses flowing from the discovery misconduct. See also Kucala Enters. Ltd. v. Auto Wax Co,
2004 WL 742252 (N.D.Ill. Apr. 6, 2004) (Court awarded $93,125.74 in sanctions for the plaintiff’s
discovery misconduct and ordered the parties to provide full responses to outstanding discovery
but denied the defendant’s motion for a permanent injunction).
� Computer Assocs. Int’l, Inc. v. Quest Software, Inc., 2003 WL 21277129 (N.D.Ill. June 3, 2002).
The plaintiff brought a copyright infringement and trade secret misappropriation suit against six of
the defendant’s employees arising from improper use of some of plaintiff’s software source code.
The plaintiff asked the defendants to make specific work and home computer hard drives available
for electronic imaging so that the plaintiff could search for and reconstruct deleted files that would
be otherwise undiscoverable. The defendants argued that the drives contained privileged
information relating directly to this litigation and worked with a computer consultant to remove the
privileged information from the images and indicate where the removed information was located.
The defendants filed a motion to require the plaintiff to pay for the computer consultation that was
necessary to prepare the drives for disclosure. After seeking advice from the Rowe 8-factor cost
shifting test, the court determined that the defendants’ costs were analogous to the review of
documents for privileged information and should not be shifted to the requesting party.
� Lakewood Eng’g v. Lasko Prod., 2003 WL 1220254 (N.D.Ill. Mar. 14, 2003). In a patent
infringement suit, the plaintiff produced e-mail and other electronic documents after the close of the
discovery period. The court found that while the plaintiff did not engage in a good faith effort to
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