Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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the defendant failed to demonstrate bad faith on the part of the state bar or that any of the seized evidence was exculpatory or material. � Green v. Baca, 225 F.R.D. 612 (C.D.Cal. 2005). A former county jail detainee filed a motion for fees and costs, claiming the county failed to produce computer-based records relating to an overdetention claim. Despite persistent questioning by the court and orders requiring the county to provide the requested information, the county did not inform the court or the plaintiff about the computer-based records for nearly nine months. In its defense, the county argued the plaintiff did not make a good faith effort to narrow the scope of its discovery request. The court rejected this argument and stated production would not have occurred absent court intervention, even if the plaintiff had acted in good faith. The court awarded $54,375 in attorney fees and costs and declared the “plaintiff’s efforts to obtain discovery … were unduly complicated and extraordinarily delayed by the failure of the county and/or its counsel to investigate promptly and effectively the records available, both in hard-copy and computer-based formats, regarding such over-detentions.” � Icu Med., Inc. v. B. Braun Med., Inc., 2005 WL 151927 (N.D.Cal. Jan. 4, 2005). The defendant sought an order compelling the plaintiff to adequately search for and produce all non-privileged documents. Upon reviewing information submitted by the parties, the magistrate judge ordered the plaintiff to search “all computerized files, e-mails, voice mails, work files, desk files, calendars and diaries, and any other locations and sources if materials of the type to be produced might plausibly be expected to be found there.” The magistrate also ordered the plaintiff to produce all nonprivileged documents, along with a written list setting forth each specific source and location searched as well as the individuals conducting the search and their areas of search responsibility. In addition, the plaintiff was to provide a list describing the specific source for each produced item and a list of items withheld on the basis of privilege. The magistrate further required the plaintiff to confirm it had searched all locations potentially containing this material and produced all nonprivileged documents. � United States v. Conte, 2004 WL 2988567 (N.D.Cal. Dec. 28, 2004). In an investigation relating to suspicions that the defendants supplied athletes with illegal performance-enhancing drugs, a magistrate judge issued search warrants permitting the government to search Yahoo! and AOL email accounts allegedly used by the defendants and a drug company. The defendants challenged these warrants and a warrant permitting seizure of e-mail correspondence with athletes, claiming the warrants were stale, overbroad and lacked probable cause. Concluding it was likely the e-mail accounts would contain e-mails relating to the distribution of the drugs, the court found probable cause existed for issuing the warrants. The court also declared the warrants were not stale since the e-mail accounts were used recently. In addition, the court found the warrants were not overbroad because they did not permit the seizure of all e-mails in the accounts. Rather, the warrants only permitted seizure of e-mails that were restricted to financial matters and performance-enhancing drugs. � Toshiba Am. Elec. Components, Inc. v. The Superior Court of Santa Clara County, 21 Cal. Rptr. 3d. 532 (Cal. Ct. App. 2004). Alleging misappropriation of trade secrets, breach of fiduciary duty, and unfair competition claims, the plaintiff moved for production of relevant evidence contained on more than 800 backup tapes and asked that the defendant bear the costs of retrieving the data. The defendant objected, claiming undue burden and expense. The defendant also revealed that some of the tapes had become obsolete, making the data accessible only through the use of specialized tools. The plaintiff contended that it should not be penalized because the defendant chose to keep records in a format difficult for retrieval. Without comment, explanation or suggestion of a sampling protocol, the trial court ordered the defendant to produce 246
the backup tape data and to bear production costs. On appeal, the court declined to apply the Zubulake seven-factor cost-shifting test and instead referenced California Code of Civil Procedure §2031, stating that “our Legislature has identified the expense of translating data compilations into usable form as one that, in the public’s interest, should be placed upon the demanding party.” The appellate court required the plaintiff to pay for translating the backup tape data. The court stated that the plaintiff could seek a protective order or file a motion to compel production if asked to pay costs that it finds unreasonable and unnecessary. The court indicated that sampling would be an appropriate test for determining necessity and remanded the case for a determination on whether the backup tapes were necessary and reasonable. � Sempra Energy Trading Corp. v. Brown, 2004 WL 2714404 (N.D.Cal. Nov. 30, 2004). In a discovery dispute relating to a preliminary investigation of gas-price increases, the court ordered the plaintiff to restore, review and produce responsive e-mail spanning a 15-month period. The plaintiff brought a motion for costs stating it was not a named party to the investigation. Denying the request, the administrative law judge determined the party was not “an uninvolved third party” and thus should bear production costs. Several months later, the judge held another discovery hearing to implement a faster e-mail review process and amended the early order to expedite the review process. The plaintiff then filed the instant action in district court, challenging the discovery orders relating to the underlying investigation and claiming “irreparable injury” as it had already spent $1.4 million in attempting to comply with the discovery orders. The court refused to exercise its jurisdiction and declared the plaintiff’s litigation costs did not demonstrate “irreparable injury.” The court dismissed the action but declared the plaintiff could pursue other remedies if warranted. � Collaboration Properties, Inc. v. Polycom, Inc., 2224 F.R.D. 473 (N.D. Cal. 2004). In a patent infringement case, the plaintiff, inter alia, sought to compel production of electronic documents and e-mails. The defendant claimed the disputed documents fell within the attorney-client privilege since they were exchanged between the defendant’s engineers and former defense counsel. In response, the plaintiff argued the defendant had waived the privilege because it was asserting an advice-of-counsel defense to charges of willfulness and because it sent the documents to its current counsel. The defendant maintained that the attorney-client privilege still existed because its counsel never opened the e-mail attachments containing the privileged documents. Denying its motion to compel, the court found the plaintiff did not present sufficient evidence to refute the defendant’s argument. The plaintiff also disputed 58 e-mails identified by the defendant as privileged. These e-mails were exchanged between non-attorney employees but contained a forwarded exchange with an attorney. Although the defendants had produced redacted copies of the e-mails, the plaintiffs argued the redactions were overbroad because they blocked out information about the author and the recipient of the e-mails. The court agreed, ordering the defendant to show the plaintiff unredacted copies of the e-mails in order to discuss the scope of privilege. This disclosure conference, the court added, would not waive any existing attorney-client privilege. � Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195 (N.D.Cal. Sept. 30, 2004). The plaintiffs sought a judicial declaration preventing the defendants from claiming that the plaintiffs unlawfully posted the defendants’ e-mail archive on multiple websites and in electronic newsletters. After the posting, the defendants sent cease and desist letters threatening to sue for copyright infringement under the Digital Millennium Copyright Act (DMCA) if the archive remained accessible on the Internet. The defendants argued that the e-mail archive, in which employees acknowledged problems with the company’s electronic voting machines, also contained proprietary and trade secret information as well as personal employee contact information. Although the court 247
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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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excuse” for the obvious discovery
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defendants were not entitled to rec
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� Whitlow v. Martin, 2009 WL 3338
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documents belonging to the plaintif
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the filing of the claim, its failur
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confidential customer lists, quotat
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defendants at a cost of more than $
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expert. The court also held that an
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electronic discovery of the defenda
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within the plaintiff’s control an
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� Perfect Barrier LLC v. Woodsmar
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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 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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Page 285 and 286: � Phillip M. Adams & Assoc., LLC
Page 287 and 288: � ClearOne Communications, Inc. v
Page 289 and 290: � Wright v. AmSouth Bancorp, 320
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Page 293 and 294: � In re Fontainebleau Las Vegas C
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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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