Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

the resources to oppose the subpoena. The ISP’s consent by complying with the e-mail production
was invalid since the subpoenaing party had at least constructive knowledge of the subpoena’s
invalidity and thus any consent was obtained deceptively and through mistake.
� Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664 (9th Cir. 2002). In a dispute relating
to the market conduct of Intel Corp, Advanced filed a complaint with the European Commission,
and sought discovery according to practices and rules in the United States under federal law.
Adopting a broad interpretation of the scope of discovery rights in cases involving foreign tribunals,
the court permitted domestic-style discovery under 28 U.S.C. § 1782 in an investigation conducted
by the European Community Directorate.
� Sea-Land Service, Inc. v. Lozen Int’l, 285 F.3d 808 (9th Cir. 2002). The court ruled that the trial
court should have admitted an internal company e-mail, which an employee of the plaintiff had
forwarded to the defendant. The defense persuasively argued on appeal that the e-mail was not
excludable hearsay because her remarks in forwarding the e-mail manifested an adoption or belief
in truth of the information contained in the original e-mail. The court ruled that this satisfied the
requirements for an adoptive admission under Fed.R.Evid. 801(d)(2)(B).
� Monotype Corp. v. Int’l Typeface Corp., 43 F.3d 443 (9th Cir. 1994). The court declined
admission of a detrimental e-mail in a license infringement action, due to the prejudicial nature of
the message and fact that the e-mail was not admissible under the business record exception.
� United States v. Catabran, 836 F.2d 453 (9th Cir. 1988). Computer printouts are admissible as
business records under the Federal Rules of Evidence 803(6), provided that proper foundational
requirements are first established.
� Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir. 1982). In an employment discrimination
suit, the court refused to order production of the electronic information on computer tape where all
the data was previously produced in hard copy. Therefore, the court determined that the Appellants
were not deprived of any data.
� Transamerican Computer Co. v. IBM, 573 F.2d 646 (9th Cir. 1978). The court was more lenient
regarding waiver of privilege where the party was required to produce larger amounts of data and
where they actually performed some degree of privilege review.
� None reported
Alaska
Arizona
� Surowiec v. Capital Title Agency, Inc., 2011 WL 1671925 (D. Ariz. May 4, 2011). In this breach
of contract, inter alia, litigation, the plaintiff requested sanctions, arguing the defendants spoliated
evidence and misrepresented the extent of its discovery efforts. In response, the defendants
argued a letter it received threatening future litigation did not trigger a duty to preserve because the
letter did not specifically name the plaintiff. Clarifying the duty is owed to the court rather than the
party’s potential adversary, the court found the letter clearly encompassed a threat from
homeowners such as the plaintiff, thus triggering the duty to preserve. Although the court declined
to apply the Pension Committee culpability standard, it nonetheless found the defendants’ in-house
counsel’s failure to issue a litigation hold, suspend routine document destruction and capture
evidence, constituted gross negligence. Reviewing the alleged discovery abuses, the court
determined the defendant used unreasonably narrow and literal search terms that initially
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