Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004). In a suit involving the criminal
investigation of state legislators and caucuses, the trial court issued a subpoena ordering the
Legislative Technology Service Bureau (LTSB) to produce backup tapes for 54 government
servers or, as an alternative, to produce extracted documents for certain individuals. The trial court
defined documents to include electronic files, e-mails, recycle bins, temporary Internet files, and
image files. On appeal, the LTSB objected to the subpoena asserting, among other things, that the
trial judge abused his discretion by issuing an overly broad and unreasonable order. The
Wisconsin Supreme Court determined that the subpoena was overbroad because it compelled
production of computer data from an entire branch of government rather than requesting specific
topics, document types, or time periods. In quashing the subpoena, the court stated that “[b]ecause
the records sought are computer records, a key word search would not have been too difficult to
incorporate in the subpoena.” See also In re John Doe Proceeding, 689 N.W.2d 908 (Wis. 2004)
(Denying motion for reconsideration).
� Northern Crossarm Co. v. Chemical Specialties, Inc., 2004 WL 635606 (W.D.Wis. Mar. 3,
2004). The plaintiff sought to compel production of 65,000 pages of e-mail in electronic form,
claiming that Rule 34(a) of the Federal Rules of Civil Procedure requires that the defendant put
electronic information into a reasonably usable electronic format. The defendant, who had already
produced the documents in paper form, objected to the request, claiming that compliance with
plaintiff’s request would be “unfairly time consuming and expensive.” Holding that the plaintiff had
misinterpreted Rule 34, the court refused to grant the plaintiff relief. The court stated that “neither
the letter nor the spirit of Rule 34 mandates that a party is entitled to production in its preferred
format.” Instead, producing electronic information in a format that “mimics” the electronic format is
sufficient. The court also added that when a party “specifically requests the production of electronic
information in a specific electronic format, then the respondent cannot simply ignore the request: it
must comply, compromise, or seek court protection.” Because the plaintiff did not explicitly request
production in an electronic form at the time the request was made, the court did not require the
defendant to re-produce the e-mail in an electronic form.
� Milwaukee Police Assoc. v. Jones, 615 N.W.2d 190 (Wis. Ct. App. 2000). In considering the
provisions of the state’s open records laws, the court concluded that the city’s production of an
analog tape was insufficient when a digital version existed. The court stated, “A potent open
records law must remain open to technological advances so that its statutory terms remain true to
the law’s intent.”
Eighth Circuit – State and Federal Cases
� Greyhound Lines, Inc. v. Wade, 2007 WL 1189451 (8th Cir. Apr. 24, 2007). In a suit arising from
a vehicle collision, the defendants appealed the district court’s decision not to issue spoliation
sanctions against the plaintiff. The electronic evidence at issue was contained in an electronic
recording device connected to the plaintiff’s vehicle which stored information about the vehicle at
the time of collision. After the collision, the plaintiff sent the device to the engine manufacturer who
erased the electronic data contained on the device. The defendants argued that the duty to
preserve the electronic data existed because litigation was likely to occur. The defendants also
argued that discovery sanctions should have been issued since the plaintiff not only destroyed the
data but notified the defendants of the data’s existence only three months before trial in its
interrogatory answers. The appellate court upheld the district court’s refusal to issue spoliation
sanctions, stating that the ultimate focus in imposing sanctions for spoliation is the intentional
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