Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Olson v. International Bus. Machs., 2006 WL 503291 (D. Minn. Mar. 1, 2006). In a case involving
allegations of wrongful termination from employment, the parties filed cross-motions for summary
judgment. After terminating the plaintiff, the defendant requested the return of a company-issued
laptop and instructed the plaintiff not to make any changes to the laptop. The laptop was returned
and examined by a computer forensic expert, who found evidence of data deletion. The expert
indicated the computer’s file content was unrecoverable, but file names – several of which related
to sexually explicit material – were located. Following the investigation, the plaintiff admitted to
deleting data from the laptop after his termination, but testified others, including family and friends,
had used the machine. In seeking summary judgment, the defendants claimed they would have
terminated the plaintiff if they knew he was visiting Internet sites featuring sexual content. The
defendants also claimed the plaintiff’s spoliation of data was grounds for termination. In support of
his summary judgment motion, the plaintiff declared the defendants could not prove facts to
support its “after-acquired evidence defense.” The court declined to grant summary judgment for
either side and found “a factual dispute exists regarding whether [the plaintiff] is responsible for the
files found on the laptop and regarding whether [the defendants] would actually have terminated
[the plaintiff] in this situation.”
� Afremov v. Amplatz, 2006 WL 44341 (Minn. Ct. App. Jan. 10, 2006). An attorney appealed a
sanctions award prohibiting him from appearing before the district court. During discovery, the
court ordered the attorney’s client to immediately turn over his computer to a court-appointed
recipient. A computer forensic expert examined the computer and found e-mail had been deleted
on the morning the computer was handed over. The expert subsequently stated he recovered 300
e-mails that were moved and may have been archived rather than deleted. The district court
determined the attorney had instructed his client to "open the computer, turn it on and to look at
‘what was in there.’ " In sanctioning the attorney, the court found the attorney “had been ‘untruthful
to the court directly and by omission,’ had deliberately and intentionally impeded discovery and
violated the court’s order, and had engaged in the spoliation of evidence that would not have been
discovered without the services of an expert.” On appeal, the court reversed the award on the
grounds that the attorney’s due process rights had been violated as the attorney was not provided
with sufficient notice of a hearing at which sanctions might be considered.
� Foust v. McFarland, 698 N.W.2d 24 (Minn. Ct. App. 2005). The defendants appealed an $11
million jury verdict in a personal injury lawsuit involving an automobile accident. Specifically, the
defendants argued that the trial court erred by barring evidence relating to the plaintiff’s intentional
spoliation of electronic evidence. The defendants also contended the court should have granted a
mistrial or dismissed the case with prejudice, instead of granting a spoliation adverse inference
instruction. Upon examining the plaintiff’s computer, the defendants’ computer forensic expert had
discovered evidence of child pornography, illegal downloads of intellectual property, and evidence
that a software wiping program was used in an attempt to permanently delete data from the
computer hard drive. The trial court refused to admit the evidence on the grounds that it was more
prejudicial than probative. The trial court further concluded an adverse inference instruction was an
appropriate spoliation sanction in light of the circumstances. On appeal, the appellate court
determined the trial court properly issued the adverse inference instruction and concluded that
intentional spoliation did not create “a presumption that a dismissal with prejudice of the spoiling
party’s claims is the best and fairest sanction.” The appellate court also found the spoliation
evidence was appropriately excluded as “some of the information was character assassination and
was more prejudicial than probative.”
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