Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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
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