Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

contended that the pagers were subject to a lesser expectation of privacy since they were owned
by the department and department policy of reviewing the messages was adequate notice of a
reduced expectation of privacy. The court held that the plaintiff had a reasonable expectation of
privacy in his text messages sent to and from his city-issued pager since the police department’s
policy was to only review employee’s text messages if they went over the monthly limit for text
messages – a policy that was used sparingly. Therefore, the plaintiff could not have reasonably
expected his messages to be reviewed for content by his employer absent a policy stating
otherwise. Furthermore, the court noted that the defendant’s argument that the police department
actually owned the pager used to transmit the protected messages was of no merit.
� Ukiah Auto. Invs. v. Mitsubishi Motors of N. Am., Inc., 2006 WL 1348562 (N.D. Cal. May 17,
2006). Alleging that the plaintiff had failed to produce all relevant documents, the defendants
sought permission from the court to inspect one of the plaintiff’s computers, which contained
financial records pertinent to the case. The plaintiff maintained that it had produced all relevant
documents from the computer to the defendant in paper form, and further, that the computer in
question was no longer operational. Finding that an inspection of the computer was warranted, the
court ordered a neutral expert to examine the computer at the plaintiff’s expense.
� Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006). The
defendant brought a motion to compel examination of the plaintiff’s computer hard drives,
contending that the plaintiff’s conduct warranted a conclusion that the plaintiff was concealing
evidence and misrepresenting facts. Although recognizing a forensic examination may be
appropriate upon a showing that the opposing party has deleted electronic evidence, the
magistrate judge observed, “a party would not be given an unfettered right to conduct its own
examination of the opposing party’s computers. Rather, a protocol would have to be established to
protect legitimate privacy, privilege, and safety concerns, and to minimize disruption.” The
magistrate judge ultimately denied the defendant’s motion, noting that the defendant’s
unsubstantiated accusations of discovery misconduct did not warrant the remedy of a forensic
examination.
� Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Metro. Transp. Auth., 2006 WL
1703824 (Cal. Ct. App. June 22, 2006). In a construction dispute case, the appellate court affirmed
the trial court’s award of terminating sanctions against the defendant for years of discovery abuses
and the intentional spoliation of evidence. After the defendant repeatedly failed to produce financial
documents responsive to the plaintiffs’ discovery requests, the plaintiffs sought an order to conduct
a forensic examination of the defendant’s computer hard drive. When the trial court awarded the
plaintiffs request, the defendant filed an interlocutory appeal. The retained computer forensic
examiner determined a number of files had been individually selected and manually deleted. In
addition, the expert testified that the recycle bin had been emptied on the same day the Court of
Appeals denied the defendant’s appeal and issued an order to preserve and produce the computer
hard-drive. Finding that the financial records were integral to the case, the court observed, “[the
defendant’s] conduct effectively destroys the ability of [the plaintiffs] to litigate the trial.” In affirming
the default judgment against the defendants, the appellate court noted, “any lesser sanction for this
willful failure to comply would have condoned [the defendant’s] behavior and by definition would
have been insufficient.” The court also awarded the plaintiffs’ attorneys fees and the costs of
appeal.
� O’Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 (Cal. App. 6th Dist. 2006).
In a case involving the online publication of a company’s trade secrets, the defendants sought a
protective order to enjoin discovery of documents identifying their confidential sources. Their
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