Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

ehavior as a direct contradiction of the reasonable inquiry requirement under Fed.R.Civ P. 26(g),
the court found the government’s actions constituted bad faith. Finding the government’s behavior
warranted sanctions, the court scheduled a hearing to determine which costs were reasonably
related to the bad faith conduct.
� Bower v. Bower, 2011 WL 1326643 (D. Mass. Apr. 5, 2011). In this tort litigation relating to the
alleged abductions of the plaintiff’s minor children, the plaintiff sought to compel Yahoo! and
Google to comply with a third party document subpoena and to compel the defendant to consent to
the production of e-mails. Agreeing with Yahoo! and Google that the Stored Communications Act
(SCA) barred the requested production absent the defendant’s consent and finding no exception
requiring compliance with a civil subpoena, the court denied the motion to compel. The court cited
case law that supported ordering consent as a sanction for failure to comply with a Fed.R.Civ.P. 34
document request, however, it found no support to order consent for failure to respond to a motion
to compel consent. Further, the court disregarded the plaintiff’s argument that the defendant’s
fugitive status should be sufficient to order consent and distinguished this case from those where
an implied agreement has been found in light of affirmative participation in the judicial process.
Based on this analysis, the court declined to find anything in the defendant’s actions (or fugitive
status) from which to imply consent to disclose her information.
� Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010). In this discovery dispute, the
defendant moved to strike an inadvertently produced e-mail to preclude its further use in the
litigation. The e-mail was disclosed when the defendant – a BCC recipient – accidentally
responded to all recipients of an e-mail sent by his attorney to co-counsel and opposing counsel.
Distinguishing this case from those in which counsel inadvertently discloses attorney-client
privileged communications while producing voluminous documents, the court nevertheless
considered whether counsel took reasonable steps to preserve the communication’s confidentiality.
The court found the counsel’s use of BCC gave rise to a foreseeable risk, but agreed that the
transmission was obviously unintended and was an easy mistake to make. Noting it was a close
decision, the court stated that “[a]n excessive readiness … to find waiver would tend to erode the
privilege” that is “tremendously important in our legal system.” Giving consideration to the fact that
counsel quickly demanded deletion of the inadvertently produced document, the court granted to
motion to strike and cautioned against “the temptation to seize opportunities arising from
inadvertent disclosures.”
� Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. June 22, 2009). In this antitrust
litigation, the plaintiffs moved for entry of an order governing discovery regarding costs, metadata
and production format. After making clear that electronic discovery must proceed in an organized
and managed fashion, the court first ordered the defendants to pay their own costs in producing
electronic documents to the plaintiffs, as they did not demonstrate the data’s inaccessibility.
Second, the court held the defendants did not have to incur costs to change the production format
of already produced documents, because the plaintiffs did not show that translating the documents
to another production format was necessary to make the documents “reasonably usable” under
Fed.R.Civ.P. 34. Third, the court refused to compel the defendant to produce “all metadata,” citing
wariness that metadata may not lead to admissible evidence and that requests for metadata should
be tailored to specific documents. Finally, the court ordered the defendants to produce their
spreadsheets and privilege logs in native format pursuant to Fed.R.Civ.P. 34’s requirement that
documents be produced as they are kept in the “usual course of business.”
� Capitol Records, Inc. v. Alaujan, 2009 WL 1292977 (D.Mass. May 6, 2009). In this copyright
infringement case, the defendant moved for a protective order to prevent the mirror imaging of two
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