Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

against the defendant as a sanction for the state’s discovery violations. Pursuant to a court order,
the defendant had requested a “forensically sound” image copy of his computer hard drive, which
had been turned over to the state by someone other than the defendant. When the state failed to
comply with this and other discovery requests, the defendant moved to suppress any evidence
derived from the computer and to have the charges dismissed. Refusing to award sanctions at that
time, the district court granted the state more time to produce the disclosures. However, the state
still had not produced the requests or allowed the defendant to access the computer even after
several months had passed. As a result, the trial court granted the defendant’s motions for
suppression and dismissal. On appeal, the state argued that it did not want to lose the forensic
value of the computer by giving access to the defendant since that would violate laws prohibiting
dissemination of child pornography. Affirming the trial court’s decision, the appellate court noted,
“[a]lthough dismissal is an extreme sanction, ‘[t]he values sought to be achieved through reciprocal
discovery will be attained only if the rules are properly observed, and to this end the trial courts
must have the ability to make those obligations meaningful’.”
� In re Pemstar, Inc. Secs. Litig., Civ. No. 02-1821 (DFW/SRN) (D. Minn. Apr. 23, 2004). In a
securities fraud class action lawsuit, the plaintiffs filed a motion to compel production of
spreadsheets, electronic documents and databases in native format. In support of its argument, the
plaintiffs declared that the “usual course of business” requirement set forth in Fed. R. Civ. P. 34
should be interpreted as requiring production of the data in native format. The defendants claimed
that the production format should be either paper, TIFF or PDF and argued that Fed. R. Civ. P. 34
does not require native production and TIFF production would adequately address any of the
plaintiffs’ concerns about retaining metadata and file structure. The court ordered the defendants to
produce a sub-set of documents in native format, stating that “production of electronic discovery in
native format is appropriate, feasible, and important under the circumstances of this case.” The
court further noted that in this case the substantive allegations were based upon an employee’s
native Lotus Notes file, making it “most useful to the fact finder to view, understand, and step into
the shoes of the information source that actually provided the alleged knowledge and access.”
� Anderson v. Crossroads Capital Partners, L.L.C., 2004 WL 256512 (D.Minn. Feb. 10, 2004). In
a sexual harassment and whistleblower lawsuit, the defendants sought to recover the hard drive of
the plaintiff’s personal computer because it allegedly contained an October 2001 document
outlining the harassment. After a protracted discovery battle, the defendants sought a Motion to
Compel and the judge ordered the plaintiff to furnish the defendant with a "copy of all
documents/files relevant to this litigation that exist on Ms. Anderson’s personal computer as well as
those that have been deleted or otherwise adulterated." Pursuant to the judge’s Order, the
defendants’ computer forensic expert examined the plaintiff’s hard drive and discovered that a data
wiping software application had been installed after the plaintiff had agreed not to “delete any
existing documents” in a deposition. The computer forensic expert also found that the hard drive
installed in the machine was manufactured in August 2002. The plaintiff claimed that she did not
use the software program to destroy evidence, but that she used it routinely to protect her
computer files. She also stated that in her view she owned the same computer throughout the
litigation despite changing the hard drive in 2002. The defendants then moved to dismiss the
complaint due to the plaintiff’s alleged discovery violations and destruction of evidence. The court
noted that the plaintiff’s “exceedingly tedious and disingenuous claim of naiveté! regarding her
failure to produce the requested discovery…defies the bounds of reason” but was not sufficiently
egregious to warrant dismissal of the case. Instead, the court issued an adverse inference jury
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