Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Annex Books, Inc. v. City of Indianapolis, 2012 WL 892170 (S.D.Ind. Mar. 14, 2012). In this
discovery dispute, the defendant sought to compel the plaintiffs’ bookkeeping data in a reasonably
usable format. Although the plaintiffs hired two forensics experts, spent over $9,000 in services,
and purchased QuickBooks Pro, they were unable to convert their data (ordinarily maintained on
Platinum) into a format compatible with the defendant’s bookkeeping program (QuickBooks).
Applying Fed.R.Civ.P. 34(a) and the corresponding advisory committee notes, the court recognized
that while Rule 34(a) requires a responding party to take steps in order to translate information into
a “reasonably usable form,” sometimes the form by which ESI is ordinarily maintained may not be
reasonably usable by all parties—especially when dealing with legacy data like the case at hand. In
determining whether to require production, the court reasoned the appropriate analysis required
weighing the benefit of the evidence against the burden of translation pursuant to Fed.R.Civ.P.
26(b)(2)(C). While the court found that the bookkeeping information was likely “relevant” and
“important,” it found the plaintiffs had made a good faith effort to translate the ESI and need not act
further. Finding that the defendant had established good cause for the ESI at hand, the court
further held that if the defendant wished to proceed attempting to import the data, they could do so
on their own dime.
� Promote Innovation LLC v. Roche Diagnostics Corp., 2011 WL 3490005 (S.D. Ind. Aug. 9,
2011). In this qui tam action, the plaintiff objected to the defendant’s request for taxation of ediscovery
costs pursuant to 28 U.S.C. § 1920, arguing the costs were not allowable and,
alternatively, that they should be exempted as a qui tam relator. Dismissing the plaintiff’s first
contention that the defendant did not inform them of search terms used, the court held the plaintiff
did not provide evidence demonstrating the search terms were improper or unnecessary. Next, the
court rejected the plaintiff’s allegation that the defendant’s ESI management techniques including
data restriction, custodian filtration, de-duplication and repairing corrupted documents and
database errors, were implemented for the defendant’s own convenience and therefore fell outside
the scope of taxable costs. Instead, the court determined that if the defendant had not used these
efficient processes, the costs may have been significantly greater. Noting that precedent supported
the taxation of e-discovery costs under § 1920 and provided no exception for qui tam relators, the
court granted the Bill of Costs in the amount of $10,040.09.
� Haraburda v. Arcelor Mittal USA, Inc., 2011 WL 2600756 (N.D. Ind. June 28, 2011). In this
employment discrimination suit, the plaintiff requested the court order the defendant to preserve email
evidence, claiming the defendant previously deleted e-mails from the plaintiff’s account
without her permission and refused to issue a litigation hold prior to the Fed.R.Civ.P. 26(f) meet
and confer. The defendant argued the plaintiff’s request was premature as Rule 26(d)(1) prohibits a
party from seeking discovery before the Rule 26(f) conference. Disagreeing with the defendant’s
argument, the court noted Rule 26(d)(1) prohibits requesting production – not compelling
preservation – and stated that ruling to the contrary would leave a party with knowledge of an intent
to destroy evidence without a remedy. Accordingly, the court found the plaintiff could suffer
measurable prejudice based on the suit’s heavy reliance on e-mails if evidence was destroyed and
ordered the defendant to implement a litigation hold.
� Sofaer Global Hedge Fund v. Brightpoint, Inc., 2010 WL 4701419 (S.D. Ind. Nov. 12, 2010). In
this corporate litigation, the defendants sought to compel production to which the plaintiff objected
claiming that producing documents from the French corporation’s possession would violate French
law, that some of the sought-after documents do not exist and that it should not be required to
search for documents in files other than those in possession of its principal. Addressing these
arguments, the court found the documents belonging to the wholly-owned French subsidiary to be
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