Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

incident, her attorney’s letter complaining about her treatment and a court order to preserve the
video recording all put the police department on notice of imminent litigation such that they should
have preserved the entire recording. Objecting, the defendants asserted that preserving only part
of the recording complied with routine procedure, the plaintiff failed to demonstrate prejudice from
the loss, the uncopied segment would have been automatically overwritten by the time the
defendants received notice to preserve it and they did not act in bad faith. Finding sufficient
evidence to constitute a fact question, the court ordered the question of bad faith be submitted to
the jury and included a permissive adverse inference instruction.
� MHC Investment Comp. v. Racom Corp., 209 F.R.D. 431 (S.D. Iowa 2002). The Iowa court
mentioned without further comment that e-mails were made available during discovery confirming
the general discoverability of e-mail evidence.
Minnesota
� Escamilla v. SMS Holdings Corp., 2011 WL 5025254 (D. Minn. Oct. 21, 2011).
In this sexual battery and harassment litigation, the defendants—a former employer and
supervisor—objected to a magistrate judge’s order to produce a personal laptop for forensic
review, search backup tapes for deleted e-mails and pay the associated costs. Specifically,
defendants object that reinstalling the operating system on the supervisor’s personal computer at a
technician’s recommendation was not done intentionally or in bad faith and that the court
compelled discovery based solely on a forensics expert’s "speculation" that reinstallation was done
to "hide or destroy relevant information." Additionally, the defendants argued that the court did not
properly conduct a proportionality analysis by considering the prejudice suffered by the plaintiff.
Finally, the defendants argued that data on the employer’s backup tapes was not reasonably
accessible and would constitute an undue burden. The court overruled the objections related to the
personal laptop, finding the timing of the reinstallation—which was done two weeks after the
plaintiff’s motion to compel—highly suspect and further noted that the prejudice suffered could only
be determined by allowing a forensics expert to review the laptop. With regard to searching
employer’s backup tapes, the court overruled the defendants’ objection, finding that the cost
estimate from a single vendor was "wildly overstated" and further found that increased costs were
a result of the defendants failure to preserve data at the outset of litigation. However, the court
found that searching the backup tapes for deleted data was technically impossible and ordered the
defendants to search the backup tapes only for live data.
� In re Hecker, 2010 WL 654151 (Bkrtcy.D.Minn. Feb. 23, 2010). In this ancillary bankruptcy
proceeding, the plaintiff requested default judgment sanctions, alleging the defendant repeatedly
failed to produce privilege logs and responsive ESI, and engaged in offensive discovery despite
court orders prohibiting those actions. The defendant argued he was unable to produce large
amounts of the requested ESI since the documents were located on his computers and servers
that were in government custody. First, the court noted that the majority of information requested
remained in the defendant’s possession, since the government made forensic images of the data.
Next, the court detailed the “shocking” behavior of the defendant and his counsel throughout the
discovery process, which included belated and incomplete productions, violation of court orders,
and delivery of an external hard drive containing 1.1 million scrambled files and folders. Based on
this behavior, the court determined the defendant acted in bad faith and willfully abused the
discovery process. Due to the court’s certainty that no court order would secure the defendant’s
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