Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D.Cal. Sept. 2, 2008). In
this securities class action, the plaintiffs sought a default judgment or, alternatively, an adverse
inference sanction. To support the motion, plaintiffs alleged the defendants: engaged in inadequate
preservation efforts after receiving notice of the litigation; failed to preserve backup tapes; and
failed to preserve transcripts and audio files. Declining to issue default judgment, the court found
that the plaintiffs had not demonstrated the degree of prejudice necessary to warrant such
sanctions, noting that the alleged misconduct did not “eclipse entirely the possibility of a just result.”
However, the court issued an adverse inference regarding the failure to preserve and produce emails
from one of the defendant’s files, noting this failure raised questions of authenticity and
uncertainty.
� Tierno v. Rite Aid Corp., 2008 WL 3876131 (N.D.Cal. Aug. 19, 2008). In this class action
litigation, the defendant objected to a previous order requiring it to pay copying costs associated
with producing responsive paper documents. See Tierno v. Rite Aid Corp., 2008 WL 3287035
(N.D.Cal. July 31, 2008). The plaintiff argued the defendant’s failure to seek a protective order to
shift costs waived the right of objection. Granting the defendant’s objection, the court held that a
responding party is not obligated to seek a protective order if it complies fully with Fed.R.Civ.P. 34,
which requires the producing party to make the documents available for inspection, but does not
require them to pay copying costs. Notably, the court found it in error that the magistrate judge
applied the Zubulake cost shifting factors, holding such factors inapplicable to the instant case
involving only paper documents. Growing frustrated with the numerous discovery disputes, the
court appointed a special master to avoid wasting judicial resources and ordered the parties to split
the costs, unless the special master determined otherwise.
� Dorn-Kerri v. South West Cancer Care, 2008 WL 3914458 (S.D.Cal. Aug. 18, 2008). In this
wrongful termination litigation, the pro se plaintiff moved to compel the defendant to supplement its
response to her request for production of documents. The plaintiff sought a report from her period
of employment in 2004-2005 from a database that updates continually. The defendant responded
that the records no longer exist since the printed records are destroyed post-processing, and that
the software program is incapable of producing historical reports, as corroborated by plaintiff’s
expert. Citing the Ninth Circuit’s “repeated admonition that courts construe pro se pleadings and
motions liberally,” the court imposed a burden on the defendant to prove discovery should not be
allowed. Finding the defendant had met its discovery obligations by demonstrating the reports no
longer tangibly exist and are incapable of electronic regeneration, the court denied the motion. The
court stated that if requested material does not exist, it cannot be in the “possession, custody, or
control of a party and therefore cannot be produced for inspection.”
� Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008). In this patent
infringement litigation, the plaintiffs sought monetary and evidentiary sanctions alleging spoliation
of evidence. The defendants’ failure to issue a written document retention policy well after its
preservation duty arose led the court to label the discovery misconduct “among the most egregious
this Court has seen.” Additional factors justifying sanctions included the defendants’ numerous
false and misleading representations made to the plaintiffs, in addition to the material
misstatements made to the court. The court ordered the defendants to pay over $250,000 in fees
and costs associated with prior and future motion practice and expert fees, deferring additional
amounts until actual fees can be determined. Furthermore, the court ordered an adverse jury
instruction against the defendants.
� Gippetti v. United Parcel Service, Inc., 2008 WL 3264483 (N.D.Cal. Aug. 6, 2008). In this age
discrimination litigation, the plaintiff sought sanctions for spoliation claiming the defendant
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