Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� 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.
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