Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

of fiduciary duty and breach of contract. The appellate court affirmed the trial court’s order issuing a
preliminary injunction against the defendants, requiring the preservation of electronic evidence and
ordering them to allow a court-appointed expert to copy the data, recover lost or deleted files, and
perform automated searches of the evidence under guidelines agreed to by the parties or
established by the court.
� Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D.Cal. 2002). In a copyright
and trademark infringement action, the court refused to find that all evidence printed from websites
is inauthentic and inadmissible. Instead, the court found that the printouts were properly
authenticated under Fed.R.Evid. 901(a) where the plaintiff’s CEO adequately established that the
exhibits attached to his declaration were “true and correct copies of pages printed from the Internet
that were printed by [him] or under his direction.”
� Lombardo v. Broadway Stores, Inc., 2002 WL 86810 (Cal. Ct. App. Jan. 22, 2002). The court
upheld sanctions where the defendant destroyed computerized payroll data that was the subject of
the plaintiff’s discovery request.
� Pennar Software Corp. v. Fortune 500 Sys. Ltd., 2001 WL 1319162 (N.D.Cal. Oct. 25, 2001). In
a breach of contract suit, the court imposed sanctions upon the defendant in the form of attorney’s
fees for committing spoliation of evidence and prolonging the discovery process. The court based
its findings on the defendant’s failure to present a maintenance policy, log files, or backup tapes
that would track the website maintenance and deletion procedures. When the evidence was
produced, the court found that the defendant tampered with and deleted evidence in order to evade
personal jurisdiction.
� Unnamed Physician v. Board of Trustees of St. Agnes Medical Center, 113 Cal.Rptr.2d 309
(Cal. Ct. App. 2001). In a physician review hearing, the hospital was ordered to provide the
physician with all existing documents related to the hospital’s computer programs, except those of
a proprietary nature.
� In re Pacific Gateway Exchange, Inc., 2001 WL 1334747 (N.D.Cal. Oct. 17, 2001). In a securities
violation case, the court lifted the discovery stay, stating “The court finds that there is a significant
risk that relevant documents, both paper and electronic, could be irretrievably lost, which could
result in prejudice to plaintiffs.”
� Benton v. Allstate Ins. Co., 2001 WL 210685 (C.D. Cal. Feb. 26, 2001). The court refused to
grant a continuance on the defendant’s summary judgment motion where the plaintiff claimed that
he had not had an adequate opportunity to conduct discovery of the defendant’s computer system.
The court concluded that the plaintiff did not show that a further continuance was necessary to
prevent irreparable harm or that further discovery will enable him to obtain evidence essential to his
opposition to the motion.
� Adobe Sys., Inc. v. Sun South Prod., Inc., 187 F.R.D. 636 (S.D. Cal. 1999). In a computer piracy
suit, the court denied the plaintiff’s ex parte application for a temporary restraining order. The court
based its decision on the fact that it is more difficult to erase evidence that is magnetically encoded
on a computer hard disk than it is to physically destroy floppy disks, compact discs, invoices, and
other tangible forms of evidence. “Manual or automated deletion of that software may remove
superficial indicia, such as its icons or presence in the user’s application menu. However, telltale
traces of a previous installation remain, such as abandoned subdirectories, libraries, information in
system files, and registry keys…Even if an infringer managed to delete every file associated with
the plaintiffs’ software, the plaintiffs could still recover many of those files since the operating
system does not actually erase the files, but merely marks the space consumed by the files as free
for use by other files.”
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