Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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including the Federal Rules of Civil Procedure, case law and the Sedona Conference® that suggest communication is crucial to a successful discovery process. Turning to the production disputes, the court prohibited the defendant from using a secure and restrictive document-viewing website in lieu of actual production, finding the website was unduly burdensome, inefficient and unnecessary in light of a two-tiered protective order. The court also ordered the defendants to reproduce unusable, non-searchable files – including an 18,000 page customer complaint database – in their native format, disclose relevant source code, and meet and confer to determine the appropriate method of production for proprietary documents relating to the dispute. � Coleman v. Sterling, 2011 WL 1099793 (S.D. Cal. Mar. 24, 2011). In this employment litigation, the plaintiffs, former executives of the defendant company, sought unredacted copies of four investigative reports prepared by a private law firm concerning alleged misconduct. Arguing the law firm provided legal advice or analysis on certain legal issues, the defendant redacted nine pages citing attorney-client privilege and work product doctrine from the 364 pages of the reports produced. In finding that privilege and work product protection applied to the documents, the court noted that each page of the reports was marked as confidential, was prefaced with a warning to that effect, contained legal advice and analysis, and was prepared under the prospect of litigation. However, the court determined the defendant disclosed substantially all of the communications and relied on counsel’s advice to justify its termination of the plaintiffs. In reliance of those facts and Federal Rule of Evidence 502(a), the court found the defendant waived privilege and ordered it to produce unredacted copies of the reports. � Techsavies, LLC v. WDFA Mktg. Inc., 2011 WL 723983 (N.D. Cal. Feb. 23, 2011). In this discovery dispute, the plaintiff requested sanctions alleging the defendant failed to both timely produce documents and respond to an interrogatory. Despite the plaintiff’s multiple complaints that the first production of 32,000 documents was incomplete, the defendant did not produce approximately 120,000 additional responsive documents until after discovery closed, claiming it "moved offices and simply forgot about them." Agreeing the defendant was on notice of its inadequate responses, the court found the defendant had an affirmative duty to investigate but failed to do so in a timely manner. Further, the defendant did not seek leave of the court before correcting its production. Concluding the defendant was unable to show its conduct was substantially justified or harmless, the court held sanctions were appropriate; however, the court also noted that the plaintiff contributed to the problems as it never moved to compel discovery. Thus, the court barred the defendant from introducing and relying on any untimely produced documents and ordered the parties to meet and confer regarding this issue. � Muniz v. United Parcel Serv., Inc., 2011 WL 311374 (N.D. Cal. Jan. 28, 2011). In this employment discrimination litigation, the plaintiff moved to quash the defendants’ third party subpoena seeking additional documentation related to the plaintiff’s previous motion for attorney fees. Among the documentation sought by the defendants were postings by the attorney on listservs and social media networks (including LinkedIn and Facebook). To demonstrate the relevancy of the demand, the defendants submitted postings from the attorney’s Facebook page and listservs. Denying the defendants’ request for this information, the court found the subpoena was not appropriately geared toward revealing information relevant to the fee dispute and ordered the postings submitted by the defendants to be removed from the record. The court also noted that the dispute had already "spiraled into the kind of ‘wasteful and time consuming satellite litigation’ that should not occur in…post-trial fee disputes." � Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. App. 3 Dist. Jan. 13, 2011). In this employment litigation, the plaintiff appealed the trial court‘s finding that attorney-client 224
communications sent over her work computer were not privileged. Regarding the transmission of electronic communications in the workplace, the court stated that privilege does not extend to when the employee uses the employer‘s systems, is advised that the communications are not private, and is aware of and agrees to these conditions. Although the attorney-client communication was sent via the employer‘s e-mail account and the plaintiff was informed of the usage policy, she argued communications were not monitored in practice and this contradiction provided her a reasonable expectation of privacy. Distinguishing the factual circumstances from City of Ontario v. Quon and Stengart v. Loving Care Agency, Inc., the court noted that “absent a company communication…explicitly contradicting” company policy, it is immaterial whether the company actually monitors communications. The court analogized the usage of an employer‘s communication systems to consulting an attorney in the employer‘s “conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard” and accordingly affirmed the trial court‘s finding that attorney-client privilege did not apply. � Brinckerhoff v. Town of Paradise, 2010 WL 4806966 (E.D. Cal. Nov. 18, 2010). In this employment discrimination litigation, the parties moved to compel discovery and production, obtain protective orders and impose sanctions. Among its motions to compel, the plaintiff sought production of responsive e-mails in their native format. Although the Federal Rules of Civil Procedure do not require a party to produce e-mails in their native format, the court noted this does not permit the party to produce the information in a form that “makes it more difficult or burdensome for the requesting party to use…efficiently.” The court acknowledged that both parties possess a mutual obligation to discuss electronic discovery at the Rule 26(f) conference and considered the plaintiff’s failure to address e-discovery in both the conference and in her production requests. The belated request for native production along with the determination that the plaintiff would not be “hard pressed” to review the approximately 4,000 pages of e-mails produced, led the court to deny the plaintiff’s request with the exception of one document – for which the metadata would likely reveal useful information. Admonishing both parties for exhibiting unprofessional conduct, the court denied sanctions. � The Sunrider Corp. v. Bountiful Biotech Corp., 2010 WL 4590766 (C.D. Cal. Oct. 8, 2010). In this intellectual property litigation, the plaintiffs renewed their motion for terminating sanctions, alleging the defendant repeatedly perjured himself in an effort to thwart discovery, failed to comply with self-executing discovery obligations imposed by the federal rules and failed to comply with discovery orders. Analyzing the appropriateness of terminating sanctions, the court found the defendant acted with “disingenuousness, dishonesty, disregard of discovery obligations, and disobedience of court orders.” Further, the court found prejudice to the plaintiff in that the defendant willfully and repeatedly gave perjurious testimony and other non-credible sworn statements, failed to produce (or belatedly and incompletely produced) responsive documents, breached his duty to supplement discovery responses and failed to comply with a discovery order requiring him to provide information relevant to evidence spoliation. In addition, the caretaker entrusted with the defendant’s personal and business affairs destroyed and failed to preserve documents, leaving no method to determine what documents were destroyed. Finding that the responsive documents were within the defendant’s possession, custody or control, the court determined the defendant breached his duty to preserve and recommended the motion for terminating sanctions be granted, the defendant’s answer be stricken and default judgment be entered against the defendant. � In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, and Prods. Liab. Litig., 2010 WL 2901798 (C.D. Cal. July 20, 2010). In this products liability litigation, the court 225
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Electronic Discovery and Computer F
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Florida ...........................
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protocol. The search protocol allow
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Finally, the court expressed disple
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should rely on IT professionals to
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to compel, the plaintiff sought pro
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had been withheld, and if e-mails w
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the defendants continued to destroy
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ordering recovery and production of
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evidence supporting this contention
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ehavior as a direct contradiction o
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the effort required to conduct a pr
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defendant’s motion to dismiss was
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under Rule 803(6) of the Federal Ru
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pay judgment in favor of the plaint
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equally all costs associated with h
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subpoena would not “prejudice the
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stopped the automatic deletion of e
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far produced refuted an inference o
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commentary that “privacy is no lo
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documents since resorting to the Ha
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� Arista Records LLC v. Usenet.co
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expense of production. The court he
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substantive. Rejecting the SEC’s
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claimed these requests raised user
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efused to issue adverse jury instru
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evidence would have been favorable
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failed to issue a proper litigation
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tapes were meant only for disaster
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cost and time considerations requir
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defendant’s investment officer wa
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Aug. 22, 2003). Stating the order w
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which the court issued severe sanct
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ordered a computer forensics examin
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evidence, and/or failed to make rea
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information from its computer netwo
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production was incomplete, and move
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falsely claimed to have been raped
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� State v. Voorheis, 2004 WL 2581
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sanctions were disproportionate and
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the defendants were responsible for
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was not equitable to force the defe
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choose not to heed the court’s or
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magistrate judge improperly minimiz
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appropriate. The court refused to m
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plaintiffs waived any privilege cla
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defendants failed to preserve and d
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portions of the plaintiff’s Faceb
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court denied sanctions, but issued
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equire the non-party to allow the p
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server. The court also granted the
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preserve the computer’s memory .
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� Itzenson v. Hartford Life and A
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� Eckhardt v. Bank of America, 20
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� Bank of Amer. Corp. v. SR Int
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� Morris v. Metals USA, 2011 WL 9
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did not address the employer’s ab
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� Mezu v. Morgan State Univ., 201
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any such information was irrelevant
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plaintiff’s motion for sanctions
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at Dulles airport, the defendants f
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documents in a manner that was resp
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“destroyed some documents because
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“would be even more reliable than
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defendant’s withholding of respon
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when it was reasonably anticipated.
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Mississippi � PIC Grp., Inc. v. L
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he allegedly sent to the victim. Th
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absent a motion to compel. The cour
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disclosure of the hard drive to the
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to all payment histories of account
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aware that a party in litigation mu
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not clear enough to warrant enforce
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ecause the computer expert testifie
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database contained proprietary info
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should have provided the substance
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protective relief (including cost s
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drive from a vital computer in the
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preserve ‘every shred of paper, e
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defendant plainly manifested an exp
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argued that it previously produced
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� United States v. Premera Blue C
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overwritten] well before th[is] law
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documents for use in her wrongful d
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devices that contain relevant elect
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asserting that the Federal Rules of
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Page 179 and 180: documents belonging to the plaintif
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Page 187 and 188: expert. The court also held that an
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Page 193 and 194: � Perfect Barrier LLC v. Woodsmar
Page 195 and 196: citing the defendants’ considerab
Page 197 and 198: � Kasten v. Doral Dental USA, LLC
Page 199 and 200: destruction of evidence indicating
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Page 207 and 208: instruction because the plaintiff i
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Page 211 and 212: including those from their homes. A
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Page 231 and 232: destroyed relevant electronic docum
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Page 251 and 252: � Playboy Enters., Inc. v. Welles
Page 253 and 254: � Peschel v. City of Missoula, 20
Page 255 and 256: spoliation. Through forensic analys
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“unadulterated fishing expedition
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e-mails establishing the documents
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metadata, the parties agree that th
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expense in restoring and searching
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and create a more organized and und
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� Phillip M. Adams & Assoc., LLC
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� ClearOne Communications, Inc. v
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� Wright v. AmSouth Bancorp, 320
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metadata or searchable text. Follow
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� In re Fontainebleau Las Vegas C
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nature of the destroyed evidence, i
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appropriate because the plaintiffs
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The award stemmed from the court’
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were also overwritten per departmen
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order, the teacher declared the pro
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investigation of the plaintiff’s
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Regarding the defendants’ relevan
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� ABC Home Health Servs. v. IBM C
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document preservation order. The re
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search,” the court ordered the De
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Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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