Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009). In this §1983 claim
asserting unreasonable force and lack of probable cause, the plaintiff sought default judgment
sanctions alleging the defendants spoliated video-recorded evidence. The defendants argued
sanctions were not appropriate because the video’s deletion was accidental. Citing the defendants’
failure to have a backup system in place to ensure adequate preservation, the court determined the
spoliation was the result of recklessness that warranted sanctions. In determining the appropriate
sanction, the court found that an adverse inference was insufficient to cure the prejudice to the
plaintiff. Although the court did not find an outright default judgment sanction appropriate, the court
held that the defendants used unreasonable force. The court recognized this determination would
effectively grant summary judgment on the issue of unreasonable force, "and, as such, [was]
tantamount to a default judgment."
Oregon
� United States v. Sedaghaty, 2010 WL 1490306 (D.Or. Apr. 13, 2010). In this criminal case, the
defendant moved to suppress electronic evidence and prevent additional searching of nine
computer hard drives seized and copied during the execution of a search warrant. Citing United
States v. Comprehensive Drug Testing, the defendant argued the government exceeded the
warrant’s scope by searching the computer hard drive. Acknowledging the importance of the cited
case, the court noted that the warrant and seizure in this case predated the Comprehensive Drug
decision, which was not intended to be applied retroactively. Finding the procedure utilized was
consistent with pre-existing case law, the court determined appropriate search terms were used
that were reasonably related to the items described in the warrant. The court also noted that
government exercised care in this case that exceeded what is required given the nature of white
collar crimes and denied the defendant’s motion to suppress.
� Relion, Inc. v. Hydra Fuel Cell Corp., 2008 WL 5122828 (D.Or. Dec. 4, 2008). In this patent
litigation, the plaintiff moved to enforce a stipulated protective order and sought the return of two
inadvertently produced e-mails, alleging they were attorney-client privileged. Analyzing the
plaintiff’s conduct using Fed.R.Evid. 502(b), the court determined that the plaintiff did not pursue all
reasonable means of preserving the inadvertently produced e-mails. The court based its decision
on the fact that the plaintiff did not assert privilege until four months after the e-mails were
produced, and then only in response to a letter from defense counsel discussing the two e-mails
and the fact that the plaintiff had multiple opportunities to inspect the documents prior to
production. The court held that such behavior was tantamount to a failure to pursue all reasonable
means of preserving the confidentiality of the documents, which resulted in waiver of the privilege.
� Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440 (D. Or. 1999). The court
held that “plaintiffs are not entitled to unbridled access [of] defendant’s computer system…plaintiffs
should pursue other less burdensome alternatives, such as identifying the number of letters and
their content.”
Nevada
� United Factory Furniture Corp. v. Alterwitz, 2012 WL 1155741 (D. Nev. Apr. 6, 2012). In this
computer fraud case, the plaintiff sought mirror imaging of the defendants’ home computers due to
the defendants’ “history of tampering with and deleting electronic data.” The plaintiff specifically
argued that because the defendants tampered with expense accounts and accounts payable files
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