Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

"wireless sniffers" to intercept approximately 600 GB of information containing whole e-mails,
usernames, passwords and other private data in over 30 countries, it argued the communications
were sent over unencrypted Wi-Fi networks and were thus readily accessible to the general public
as excepted under the Wiretap Act. In response, the plaintiff argued the readily accessible
exception applied only to radio communications. Turning to the legislative history to interpret the
structure and intent of the Act, the court found the exception applied to all electronic
communications rather than the more narrowly defined radio communications. But the court
rejected Google’s broader argument because Wi-Fi networks, like cellular communications, are
designed to make intentional monitoring by third parties difficult. Absent the use of "rare packet
sniffing software" – a technology not possessed by the general public – the court found that
intercepting information over Wi-Fi networks would be extremely difficult, and thus falls outside the
readily accessible exception. Accordingly, the court denied the motion to dismiss the federal
wiretap allegations.
� Adams v. AllianceOne, Inc., 2011 WL 2066617 (S.D. Cal. May 25, 2011). In this class action suit,
the plaintiff requested $17,076.06 in sanctions arguing the defendant committed discovery abuse
by producing over 20 million pages of documents in unsearchable PDFs. In response, the
defendant argued a PDF was the most useable format available because data extraction from its
third party, proprietary software storage system rendered the data unreadable “mush” that could
become readable only via printing (impractical due to the volume) or PDF conversion. Further, the
PDFs could be searched using commercially available software. Finding the plaintiff did not specify
a desired format and noting that past production practices do not dictate future requirements
absent a party agreement, the court found no basis on which to impose sanctions. The court
additionally found the information was usable and searchable, that translating data between
formats was permissible under the Fed.R.Civ.P. and that there was insufficient evidence the
defendant acted with willful intent. Although the court remained “less than pleased” with the
defendant’s past discovery delays, it withdrew its informal recommendation for sanctions and
denied the motion.
� United States v. Salyer, 2011 WL 1466887 (E.D. Cal. Apr. 18, 2011). In this criminal antitrust and
racketeering litigation, the defendant requested the creation of a web-based, common database to
review the mass of documentation – estimated at 1 to 2 terabytes – collected by the government
over a ten year investigation. Identifying numerous issues, including the size of information,
resources and technological learning curve of defense counsel, need to review all discovery and
the inability to agree, the court noted that when information "reaches the hundreds of
gigabytes/terabytes stage, the government should consider whether everyone is better served if
this information is placed in a common database" (emphasis in original). However, in consideration
of the high costs involved, estimated to be between $350,000 and $2 million, and finding there was
neither a clear benefit to the parties nor authority of the court to compel such a contribution, the
court declined to recommend delay of the motion schedule or compel creation of the database.
Nonetheless, the court recommended the defendant file, ex parte, a Criminal Justice Act request
for financial assistance.
� In re Facebook PPC Adver. Litig., 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011). In this breach of
contract litigation, the plaintiffs sought resolution of various production disputes including a
disagreement regarding the development of an Electronically Stored Information (ESI) Protocol.
Rejecting as speculative the defendant’s concern that entering an ESI Protocol would frustrate and
slow the discovery process, the court ordered the parties to meet and confer to develop an ESI
Protocol in light of the "clear thrust of the discovery-related rules, case law, and commentary,"
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