Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

court also determined the attorneys made repeated efforts to verify accuracy of the plaintiff’s
discovery responses and noted the lack of candor demonstrated by some of the plaintiff’s
employees.
� Wixon v. Wyndham Resort Dev. Corp., 2009 WL 3075649 (N.D. Cal. Sept. 21, 2009). In this
litigation, the parties filed several motions regarding the special master’s report. The report found
the defendants’ violation of a previous production agreement was harmless but still held the
defendants responsible for 75 percent of the fees related to the special master proceeding. In
particular, the plaintiffs objected to the special master’s finding that the defendants’ noncompliant
production was harmless. Addressing the timeliness of the production, the court upheld the report
with respect to 47 of the documents because they did not contain any keywords selected by the
plaintiffs. However, the court rejected the portion of the report that pertained to the defendants’
failure to produce documents stored on a "shared" directory in a timely manner, noting the
defendants should have noticed a flaw in the custodian-based search when a group of potentially
relevant documents had no custodian. Based on this failure, the court issued sanctions, which
included requiring the defendants to bear expenses incurred by the plaintiffs in preparing the
motion to strike and the full cost of the special master’s fees.
� United States v. Comprehensive Drug Testing, Inc., 2009 WL 2605378 (Cal. App. 9 Dist. Aug.
26, 2009). In this federal investigation into steroid use by professional baseball players, the
government appealed three orders entered by separate courts in the Ninth Circuit relating to the
search and seizure of electronic information. The government argued it complied with the protocols
set forth in United States v. Tamura and also that it was allowed to seize any additional data
related to other players’ steroid use under the plain view exception of the Fourth Amendment.
Labeling the government’s argument as "too clever by half," the court determined the government
should "forswear reliance on the plain view doctrine or any similar doctrine" regarding seizure of
data requiring segregation. The court also held that any future search warrant application should
include a protocol that prevents agents from examining or retaining data other than that specified in
the warrant, which may require segregation to be conducted by an independent third-party to
protect privacy interests. Finally, the court acknowledged the reality that over-seizure of data is part
of the electronic search process and issued five guidelines magistrate judges must follow when the
government seeks a warrant regarding examination of electronic media. The guidelines aimed "to
strike the proper balance between the government’s legitimate interest in law enforcement and the
people’s right to privacy and property . . . as guaranteed by the Fourth Amendment."
� Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d 802 (Cal. App. 4 Dist. June 2009). In this
warranties and consumer fraud case, the plaintiff appealed a jury verdict, arguing the trial court
abused its discretion by choosing to impose an adverse jury instruction and monetary sanctions
instead of terminating sanctions against the defendant for discovery abuses. Prior to trial, the
defendant failed to produce documents by the initial court-ordered production date and violated
four discovery orders. After trial began, the plaintiff’s attorney reviewed e-mails produced by the
defendant and renewed its prior motion for terminating sanctions, asserting that the defendant had
failed to locate, withheld or destroyed relevant electronic documents. The court of appeals
determined the defendant had stonewalled in producing highly relevant documents resulting in
severe prejudice to the plaintiff, and that the defendant’s repeated and egregious violations of
discovery laws threatened the integrity of the judicial process. While the court of appeals held that
the trial court did not initially abuse its discretion in denying the plaintiff’s request for terminating
sanctions, the duty to impose the severe sanctions arose when the trial court learned during trial
that the defendant had failed miserably to comply with the discovery orders. Accordingly, the court
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