Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

More documents

Recommendations

Info

compel; however, the court ordered the counter-defendant to perform a search and disclose all responsive documents. � Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D.Wis. Oct. 24, 2008). In this contract litigation, inter alia, the defendant filed a motion to compel the discovery of the plaintiff’s source code, claiming such information was essential to the defendant’s counterclaim. The defendant argued the source code was the only evidence that may have revealed the quality of the product the plaintiff produced under the contract. The plaintiff argued against production of the source code, claiming undue burden in that it would cost $300,000 and take 5,000 hours. Due to the defendant’s willingness to employ outside consultants to review the code for relevant information, thereby reducing cost, the court ordered its production finding the potential value of the source code outweighed the burden. � Maxpower Corp. v. Abraham, 2008 WL 1925138 (W.D.Wis. April 29, 2008). In this litigation against former employees, the plaintiffs sought a preliminary injunction requiring the defendants to return information allegedly deleted from the plaintiffs’ servers, in addition to spoliation sanctions. The plaintiffs’ computer forensics expert examined the defendants’ laptops, finding evidence of hard drive wiping software and of “text strings” referring to information about outdated products. The defendants argued the deletions of information from their laptops were done for maintenance purposes and complied with company policy. Finding the plaintiffs’ computer forensic evidence insufficient and ambiguous, the court denied the motion for preliminary injunctive relief. Additionally, the court denied the plaintiffs’ motion for sanctions finding insufficient evidence to support the argument that wiping the hard drive constituted deliberate spoliation. � State ex rel. Gehl v. Connors, 2007 WL 3024436 (Wis.Ct.App. Oct. 18, 2007). In this dispute over the production of public records, the petitioner appealed the circuit court’s decision to deny his petition seeking e-mail communications under the public records law. The petitioner claimed county government officials improperly denied his request per the public records law and wrongfully failed to retain responsive e-mails. The petitioner additionally requested the search of approximately 150 backup tapes and more than thirty employees’ computer hard drives for over 20 keywords. Affirming the circuit court’s decision, the court found the petitioner’s request to be overbroad and overly burdensome, finding that the right to inspect public records is not absolute. The court noted that the request virtually sought every e-mail passed between all employees of the county named in the request over a two-year period. In addition, the court stated that the search terms chosen by the petitioner were broad on their face as to require the production of records relating to virtually all county zoning matters over a two-year period. � Haka v. Lincoln County, 2007 U.S. Dist. LEXIS 64480 (W.D.Wis. Aug. 29, 2007). In this wrongful termination suit, the defendants motioned the court for a protective order to limit their discovery obligations. The plaintiff sought all documents, notes, memos, emails and metadata from all officials, board members and officers regarding the reorganization of the Lincoln County Child Support Agency. Documents responsive to this request, which existed on two external hard drives containing about four terabytes of data extracted from computer servers, accounted for approximately 500 billion typewritten pages. The parties’ attempts to limit the production based on keyword searching were unsuccessful as they could not agree on which words to use. The court considered the Zubulake factors as well as the Advisory Committee Notes to Rule 26(b)(2) and found that although the issues were important, the potential damages were low and the cost of production was disproportionate. The court granted the defendants’ motion in part by ordering the plaintiff to determine the keywords to be used and the parties to split the cost of the search 50/50. The defendants were required to pay for the cost of the privilege and relevance review. 196
� Kasten v. Doral Dental USA, LLC, 2007 WL 1791226 (Wis. June 22, 2007). In a suit by a nonmanaging member of a limited liability company seeking to review company records, the district court held email was neither a record nor a company document. The district court determined that email was just a communication like a telephone call, not a document or record. The plaintiff appealed this distinction, and the Wisconsin Supreme Court reversed. � WIREdata, Inc. v. Village of Sussex, 2007 WL 10110 (Wis. Ct. App. Jan. 3, 2007). In a dispute over a request for public property records under state law, the plaintiff filed a motion compelling the defendant to produce native files from a public record. The defendant produced a PDF version of the requested public record according to a decision from the lower court, but the plaintiff required native data from the document not found on a PDF and filed this motion. The plaintiff argued that the native format of the public record database was owned by the public, and the defendant could not deny access to it. The defendant argued that it would be unduly burdensome and costly to produce the document. It also argued the information sought by the plaintiff was information physically entered into the computer system by the defendant’s employees and not subject to public disclosure. The court held in favor of the plaintiff since the defendant, as a public entity, did not create the document in PDF form and should produce it as viewed by the defendant. Therefore, the court held that the plaintiff had a right to “access to this database for purposes of examination and copying of the source data” and thereby ordered the defendant to grant the plaintiff access to its original information. � Liturgical Pubs., Inc. v. Karides, 715 N.W.2d 240 (Wis. App. 2006). In an appeal from a judgment dismissing unfair competition and computer theft claims, the appellant claimed the trial court erred in granting summary judgment in favor of the respondents. In granting summary judgment, the trial court found the appellant had failed to present any evidence establishing that the respondents, former employees of the appellant, had stolen computer data. During discovery, the trial court ordered mirror images of the respondents’ computers, limiting inspection of the images to a hash value search. The trial court also appointed a referee to assist in the process. When no hash value matches were found, the appellant requested a second inspection to search for specified words, evidence of reformatting, wiping or deleting files, and other computer activity. As the first inspection had yielded nothing, the trial court ruled further discovery would be unreasonable. In affirming the trial court’s decision, the appellate court concluded the trial court “acted within the scope of its discretion in denying [the appellant’s] additional request, which essentially amounted to a fishing expedition.” � Hagemeyer North American, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594 (E.D.Wis. 2004). In a discovery dispute involving two corporations, the plaintiff moved to compel the defendant to conduct and bear the costs of electronically searching backup tapes already produced by the defendant. The plaintiff also sought to compel production of e-mail contained on additional backup tapes not produced to the plaintiff. In response, the defendant argued it would be costly and time-consuming to produce the additional backup tape e-mail and to search the alreadyproduced backup tapes. The court determined that the plaintiff failed to establish additional relevant backup tape data existed and, as a result, denied the plaintiff’s motion to compel additional documents. In assessing whether cost-shifting for the backup tapes already produced was warranted, the court adopted the Zubulake seven-factor cost-shifting analysis. The court approved the sampling approach conducted in Zubulake and ordered the defendant to recover responsive data from any five backup tapes of the plaintiff’s choosing. The court would then assess whether the cost of recovering e-mails from the remaining backup tapes would be proportionate to the likely benefit. 197
Page 1 and 2:
Electronic Discovery and Computer F
Page 3 and 4:
Florida ...........................
Page 5 and 6:
protocol. The search protocol allow
Page 7 and 8:
Finally, the court expressed disple
Page 9 and 10:
should rely on IT professionals to
Page 11 and 12:
to compel, the plaintiff sought pro
Page 13 and 14:
had been withheld, and if e-mails w
Page 15 and 16:
the defendants continued to destroy
Page 17 and 18:
ordering recovery and production of
Page 19 and 20:
evidence supporting this contention
Page 21 and 22:
ehavior as a direct contradiction o
Page 23 and 24:
the effort required to conduct a pr
Page 25 and 26:
defendant’s motion to dismiss was
Page 27 and 28:
under Rule 803(6) of the Federal Ru
Page 29 and 30:
pay judgment in favor of the plaint
Page 31 and 32:
equally all costs associated with h
Page 33 and 34:
subpoena would not “prejudice the
Page 35 and 36:
stopped the automatic deletion of e
Page 37 and 38:
far produced refuted an inference o
Page 39 and 40:
commentary that “privacy is no lo
Page 41 and 42:
documents since resorting to the Ha
Page 43 and 44:
� Arista Records LLC v. Usenet.co
Page 45 and 46:
expense of production. The court he
Page 47 and 48:
substantive. Rejecting the SEC’s
Page 49 and 50:
claimed these requests raised user
Page 51 and 52:
efused to issue adverse jury instru
Page 53 and 54:
evidence would have been favorable
Page 55 and 56:
failed to issue a proper litigation
Page 57 and 58:
tapes were meant only for disaster
Page 59 and 60:
cost and time considerations requir
Page 61 and 62:
defendant’s investment officer wa
Page 63 and 64:
Aug. 22, 2003). Stating the order w
Page 65 and 66:
which the court issued severe sanct
Page 67 and 68:
ordered a computer forensics examin
Page 69 and 70:
evidence, and/or failed to make rea
Page 71 and 72:
information from its computer netwo
Page 73 and 74:
production was incomplete, and move
Page 75 and 76:
falsely claimed to have been raped
Page 77 and 78:
� State v. Voorheis, 2004 WL 2581
Page 79 and 80:
sanctions were disproportionate and
Page 81 and 82:
the defendants were responsible for
Page 83 and 84:
was not equitable to force the defe
Page 85 and 86:
choose not to heed the court’s or
Page 87 and 88:
magistrate judge improperly minimiz
Page 89 and 90:
appropriate. The court refused to m
Page 91 and 92:
plaintiffs waived any privilege cla
Page 93 and 94:
defendants failed to preserve and d
Page 95 and 96:
portions of the plaintiff’s Faceb
Page 97 and 98:
court denied sanctions, but issued
Page 99 and 100:
equire the non-party to allow the p
Page 101 and 102:
server. The court also granted the
Page 103 and 104:
preserve the computer’s memory .
Page 105 and 106:
� Itzenson v. Hartford Life and A
Page 107 and 108:
� Eckhardt v. Bank of America, 20
Page 109 and 110:
� Bank of Amer. Corp. v. SR Int
Page 111 and 112:
� Morris v. Metals USA, 2011 WL 9
Page 113 and 114:
did not address the employer’s ab
Page 115 and 116:
� Mezu v. Morgan State Univ., 201
Page 117 and 118:
any such information was irrelevant
Page 119 and 120:
plaintiff’s motion for sanctions
Page 121 and 122:
at Dulles airport, the defendants f
Page 123 and 124:
documents in a manner that was resp
Page 125 and 126:
“destroyed some documents because
Page 127 and 128:
“would be even more reliable than
Page 129 and 130:
defendant’s withholding of respon
Page 131 and 132:
when it was reasonably anticipated.
Page 133 and 134:
Mississippi � PIC Grp., Inc. v. L
Page 135 and 136:
he allegedly sent to the victim. Th
Page 137 and 138:
absent a motion to compel. The cour
Page 139 and 140:
disclosure of the hard drive to the
Page 141 and 142:
to all payment histories of account
Page 143 and 144:
aware that a party in litigation mu
Page 145 and 146: not clear enough to warrant enforce
Page 147 and 148: ecause the computer expert testifie
Page 149 and 150: database contained proprietary info
Page 151 and 152: should have provided the substance
Page 153 and 154: protective relief (including cost s
Page 155 and 156: drive from a vital computer in the
Page 157 and 158: preserve ‘every shred of paper, e
Page 159 and 160: defendant plainly manifested an exp
Page 161 and 162: argued that it previously produced
Page 163 and 164: � United States v. Premera Blue C
Page 165 and 166: overwritten] well before th[is] law
Page 167 and 168: documents for use in her wrongful d
Page 169 and 170: devices that contain relevant elect
Page 171 and 172: asserting that the Federal Rules of
Page 173 and 174: excuse” for the obvious discovery
Page 175 and 176: defendants were not entitled to rec
Page 177 and 178: � Whitlow v. Martin, 2009 WL 3338
Page 179 and 180: documents belonging to the plaintif
Page 181 and 182: the filing of the claim, its failur
Page 183 and 184: confidential customer lists, quotat
Page 185 and 186: defendants at a cost of more than $
Page 187 and 188: expert. The court also held that an
Page 189 and 190: electronic discovery of the defenda
Page 191 and 192: within the plaintiff’s control an
Page 193 and 194: � Perfect Barrier LLC v. Woodsmar
Page 195: citing the defendants’ considerab
Page 199 and 200: destruction of evidence indicating
Page 201 and 202: incident, her attorney’s letter c
Page 203 and 204: question to this court to determine
Page 205 and 206: � State v. Levie, 695 N.W.2d 619
Page 207 and 208: instruction because the plaintiff i
Page 209 and 210: plaintiffs’ alleged failure to me
Page 211 and 212: including those from their homes. A
Page 213 and 214: litigation was pending, he had not
Page 215 and 216: the illegal images onto his compute
Page 217 and 218: portions of the e-mail were not pro
Page 219 and 220: the resources to oppose the subpoen
Page 221 and 222: drive in temporary internet file fo
Page 223 and 224: "wireless sniffers" to intercept ap
Page 225 and 226: communications sent over her work c
Page 227 and 228: court also determined the attorneys
Page 229 and 230: � Keithley v. Homestore.com, Inc.
Page 231 and 232: destroyed relevant electronic docum
Page 233 and 234: personal sanctions due to an absenc
Page 235 and 236: Qualcomm, Inc. v. Broadcom Corp., 2
Page 237 and 238: liable for the destruction of the h
Page 239 and 240: investigation where the defendant r
Page 241 and 242: motion was denied by the trial cour
Page 243 and 244: documents with titles indicating th
Page 245 and 246: defendants had received requests to
Page 247 and 248:
the backup tape data and to bear pr
Page 249 and 250:
documents included an inaccurate bi
Page 251 and 252:
� Playboy Enters., Inc. v. Welles
Page 253 and 254:
� Peschel v. City of Missoula, 20
Page 255 and 256:
spoliation. Through forensic analys
Page 257 and 258:
Phoenix and determined that an elec
Page 259 and 260:
the defendant was in possession, cu
Page 261 and 262:
Nevertheless, the defendants believ
Page 263 and 264:
one violation of the second order,
Page 265 and 266:
delays and financial harm. In suppo
Page 267 and 268:
plaintiff produced a mere ten e-mai
Page 269 and 270:
defendant’s employees continuousl
Page 271 and 272:
the e-mails and attachments to be r
Page 273 and 274:
elating to any ex parte communicati
Page 275 and 276:
“unadulterated fishing expedition
Page 277 and 278:
e-mails establishing the documents
Page 279 and 280:
metadata, the parties agree that th
Page 281 and 282:
expense in restoring and searching
Page 283 and 284:
and create a more organized and und
Page 285 and 286:
� Phillip M. Adams & Assoc., LLC
Page 287 and 288:
� ClearOne Communications, Inc. v
Page 289 and 290:
� Wright v. AmSouth Bancorp, 320
Page 291 and 292:
metadata or searchable text. Follow
Page 293 and 294:
� In re Fontainebleau Las Vegas C
Page 295 and 296:
nature of the destroyed evidence, i
Page 297 and 298:
appropriate because the plaintiffs
Page 299 and 300:
The award stemmed from the court’
Page 301 and 302:
were also overwritten per departmen
Page 303 and 304:
order, the teacher declared the pro
Page 305 and 306:
investigation of the plaintiff’s
Page 307 and 308:
Regarding the defendants’ relevan
Page 309 and 310:
� ABC Home Health Servs. v. IBM C
Page 311 and 312:
document preservation order. The re
Page 313:
search,” the court ordered the De
show all

Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

Create successful ePaper yourself

Delete template?

Save as template?