Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation. The
court found that there was no proof that the plaintiff aimed to suppress the discoverable evidence.
As to the discovery violations, the court found that the district court’s refusal was also proper since
the plaintiff’s discovery answers were responsive and the defendants were not prejudiced by the
untimely disclosure of the data’s existence.
� United States v. Ray, 428 F.3d 1172 (8th Cir. 2005). The defendant appealed an extortion
conviction relating to an attempt to extort $2.5 million from a company by sending e-mails
threatening to exploit a breach in the company’s computer security. Arguing insufficiency of the
evidence, the defendant contended the government had not established who actually sent the emails.
During the government’s investigation, a computer forensic expert had examined the
defendant’s hard drive and found three threatening e-mails and other incriminating evidence. The
expert testified the e-mails and documents were created by someone typing on the computer. The
expert also stated that someone had logged onto the Internet from the computer using the screen
name and password used to send the e-mails. Further, the expert found no evidence of remote
access or hacking into the computer. Based on this evidence, as well as the defendant’s admission
he logged onto his computer and the Internet several times a day, the appellate court upheld the
conviction.
� United States v. Bach, 310 F.3d 1063 (8th Cir. 2002). In a criminal prosecution for possession of
child pornography, Yahoo! technicians retrieved, pursuant to a search warrant, all information from
the defendant’s e-mail account. The lower court ruled that the seizure of the e-mails by Yahoo! was
unlawful because police were not present when the defendant’s e-mail account was searched.
Reversing the lower court’s opinion, the appellate court held that Yahoo!’s search of the
defendant’s e-mails without a police officer present was reasonable under the Fourth Amendment
and did not violate the defendant’s privacy rights.
Arkansas
� Helmert v. Butterball, LLC, 2010 WL 2179180 (E.D.Ark. May 27, 2010). In this employment
litigation, the plaintiffs alleged the defendant’s production response was inadequate based on its
failure to conduct a meaningful search of electronic information. The defendant argued the
plaintiffs’ request was overbroad, addressed information that was not reasonably accessible and
would require privilege determinations. Addressing one of the four search term categories, the
court determined it was narrowly tailored except for the terms that would require an electronic
search of e-mails for “one term within the same sentence as another term,” since the plaintiff
offered no evidence that the search could be performed electronically. The court found the second
category of terms to be duplicative and unnecessary, but held the third and fourth term categories
were appropriately constructed. Next, the court narrowed the custodian list to include only the
employees who were likely to possess relevant information and denied the proposed search of
backup tapes, finding the information not reasonably accessible. The court also ordered a search
of hard drives, laptops and personal e-mail accounts of two custodians for the identified search
terms. Finally, the court denied the defendant’s request for cost-shifting as it had not ordered the
restoration and search of backup tapes.
� B & B Hardware, Inc. v. Fastenal Co., 2011 WL 2115546 (E.D. Ark. May 25, 2011). In this
discovery dispute, the plaintiff sought to compel production and requested a hearing to determine
what the defendant had done to meet its obligation to produce responsive ESI, forensically image
hard drives and conduct a search of 1,182 backup tapes (estimated to cost $84,854,704.90).
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