Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

drive in temporary internet file folders and the third was recovered from an unallocated cluster.
Disregarding the defendant’s claims he did not knowingly possess the images as they were saved
automatically into the computer’s random access memory (RAM), the court determined the
defendant’s active search for the images was sufficient to support the conviction.
� United States v. Flyer, 2007 WL 2051373 (D.Ariz. July 13, 2007). In this case, the defendant was
charged with attempted transportation and shipping of, as well as possession of, child
pornography. After initially pleading guilty to the charges, the defendant retained substitute counsel
and withdrew his plea. The defendant then hired a computer forensics expert to review the
electronic evidence gathered through the search warrant. The expert testified via affidavit that
numerous files were accessed and created months after the laptop had been seized by the
government, making the data completely unreliable and unusable. The government’s expert
responded that battery malfunction caused the erroneous files and access dates. The court held
that while the government may have been negligent, the defendant was not prejudiced, and
therefore denied the defendant’s motions to dismiss, suppress the evidence, and to hold a hearing
to debate the evidentiary foundation of the affidavit relied on in issuing the search warrant.
California
� Calvert v. Red Robin Int’l, Inc., 2012 WL 1668980 (N.D. Cal. May 11, 2012). In this wage and
hour class action, the defendant motioned to impose sanctions and disqualify the class
representative for failing to disclose relevant evidence in the form of Facebook conversations with
putative class members. After the plaintiff failed to submit initial disclosures on three separate
occasions, the defendant made a request for production of documents, and the plaintiff moved for
class-wide discovery. Upon deposing the plaintiff, the defendant learned of the plaintiff’s repeated
cycle of attempts to contact putative class members in an attempt to recruit additional class
members, as well as to suborn perjury. Despite several requests for these messages, the plaintiff
claimed ignorance of such conversations, blamed counsel for insufficient production, and testified
that they did not delete any content. Once the defendant filed a motion to disqualify the plaintiff as
class representative, several incomplete Facebook conversations were produced—many of which
contradicted the plaintiff’s earlier assertions. Reviewing the plaintiff’s conduct, the court found
repeated non-compliance with basic discovery obligations and disqualified the plaintiff as class
representative. Additionally, due to the plaintiff’s bad faith efforts to suborn perjury, the court
imposed sanctions in the amount of $15,985.
� In re Online DVD Rental Antitrust Litig., 2012 WL 1414111 (N.D. Cal. April 20, 2012). In this
antitrust litigation, the plaintiffs motioned for review of the clerk’s award of $737,838.79 in taxable
costs. In its analysis, the court took note of “the Third Circuit’s well-reasoned opinion in Race Tires
Am., Inc. v. Hooiser Racing Tire Corp.,” which limited taxable costs to a very narrow reading of 28
U.S.C. § 1920, but identified the “absence of directly analogous Ninth Circuit authority.” Thus, the
court concluded that a broad reading of § 1920 for e-discovery costs was most appropriate in this
matter. Reviewing the taxation award, the court denied costs taxed for production of black and
white copies of PowerPoint slides, restamping of documents, and transcripts—totaling
approximately $27,000. With regard to the rest of the e-discovery costs, the court declined to deny
them, modifying the taxation award to $710,194.23, for which payment was stayed pending further
appeal of the court’s decision.
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