Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

plaintiffs’ alleged failure to meet the terms of a stipulated preservation and production agreement.
Contending the defendants’ interpretation of the agreement was overbroad, unrealistic and a
moving target, the plaintiffs argued their obligations were satisfied by interviewing all stipulated
custodians except former employees. Although the court agreed with the plaintiffs’ narrower
interpretation, it characterized the plaintiffs’ decision not to interview former employees as "an
inadequate and unsupportable excuse" and concluded the plaintiffs failed to comply with the
custodian protocol required by the agreement. However, finding an order to fully comply at this
point in the litigation would likely do "violence," and that the parties might already have received the
requested information in late productions, the court instead ordered the parties to meet and confer
and report any agreement concerning how to proceed with non-expert discovery, after which time
the court will rule on the 12 categories included in the defendants’ motion to compel.
Trickey v. Kaman Indus. Techs. Corp., 2010 WL 5067421 (E.D. Mo. Dec. 6, 2010). In this
employment discrimination litigation, the plaintiff sought production of all relevant electronic
communications, alleging the defendants failed to adequately preserve electronic data in
anticipation of litigation. Employees of the defendants manually selected and preserved documents
and e-mails contained in the live database or archive that they deemed potentially relevant instead
of preserving a mirror image of the e-mail server and relevant data sets. Although concerned by
the defendants’ failure to create a mirror image, the court declined to issue sanctions as the plaintiff
made no spoliation claims and the defendants made considerable remedial efforts by hiring an
independent forensic computer expert to examine the electronic data for relevant information.
Based on this retention of the forensic IT consultant and efforts to search existing data, the court
agreed that the requested documents no longer existed and denied the motion to compel unless
the plaintiff could identify now-existing databases that were not previously searched.
� Secure Energy, Inc. v. Coal Synthetics, 2010 WL 597388 (E.D.Mo. Feb. 17, 2010). In this
business dispute, the plaintiffs sought production of electronic engineering drawings in native
format with metadata. The plaintiffs argued that the definition of “documents” in previous discovery
requests included ESI, that they were under the impression the defendants agreed to produce the
files and that the terms of a proposed joint scheduling plan entitled them to native production.
Citing Fed.R.Civ.P. 34, the court determined the defendants were not obligated to produce the
drawings in native format since the plaintiffs failed to identify a specific format in their requests. The
court also found the plaintiffs’ motion untimely, since they waited until two months after the
discovery and motion to compel deadlines had passed. Finally, the court recognized that expert
testimony may be required regarding retrieval and interpretation of the metadata from the drawings
and determined the defendants would be prejudiced if the plaintiffs’ request was granted. Thus, the
court denied the plaintiffs’ motion and held the defendants fulfilled discovery obligations by
producing the drawings in PDF format.
� Am. Boat Co., Inc. v. Unknown Sunken Barge, 2008 WL 1821486 (E.D.Mo. April 22, 2008). In
this negligence action, the plaintiffs moved to reopen the time to file an appeal claiming the
plaintiffs’ attorney did not receive the electronic notice of the court order. The defendants’ computer
forensic expert imaged the computer hard drive belonging to the plaintiffs’ counsel and found no
evidence the notice had ever been on the computer system. Based on his investigation, the expert
opined the notice was successfully sent, but was removed from the server after the attorney’s
secretary accessed the e-mail from a remote computer using the internet Post Office Protocol. The
court found that proof an e-mail is not in a recipient’s possession is insufficient to rebut the
presumption that a generally reliable, properly dispatched e-mail reached its intended recipient.
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