Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

determined the defendant’s behavior was the kind that the Federal Rules of Civil Procedure
specifically caution against. Accordingly, the court ordered the defendant to produce the e-mails in
a readable format, number them individually and indicate which e-mails respond to the plaintiff’s
specific requests for production.
� Suarez Corp. Indus. v. Earthwise Technologies, Inc., 2008 WL 2811162 (W.D.Wash. July 17,
2008). In this litigation involving trademark infringement, inter alia, the plaintiffs filed a motion to
compel seeking electronic documents. Unsatisfied with the defendants’ production, the plaintiffs
asserted the production was a disorganized “document dump” and that they should be able to
specify production format with regard to the organization of production. Finding the plaintiffs’
argument unpersuasive, the court determined the plaintiffs were without authority to mandate the
defendants’ production organization under Fed.R.Civ.P. 34(b). The court also determined the
advisory committee comments to that rule do not specify the term “form” as referring to the
organizational mandates found in Fed.R.Civ.P. 34(b)(2)(E). Nevertheless, the court required the
defendants to “convey some information as to how the documents were determined to be
responsive or how the documents were kept in the normal course of business.” Accordingly, the
court granted the motion to compel in part.
� Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D.Wash. June 20, 2008). In this
litigation alleging a breach of a duty of loyalty, the interested third party filed a motion to quash
subpoenas served upon it by the plaintiff and sought a protective order. The third party argued the
search of its hard drives was unduly burdensome and would result in the disclosure of confidential
trade secrets. Finding the plaintiff’s discovery request to meet the good cause standard of
Fed.R.Civ.P. 26(b)(1), the court nonetheless quashed the subpoena insomuch as it required the
third party to produce its computers for copying. However, the court directed the third party to
search its own computers. Recognizing the need for a protective order given the sensitive nature of
trade secrets, the court relied on Playboy Enterprises, Inc. v. Welles, F.Supp.2d 1050 (S.D.Cal.
1999) as a model for this case, ordering the third party to conduct a search of the hard drives,
producing information that is relevant, responsive and does not disclose trade secrets.
� Mikron Indus., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. April 21,
2008). In this dispute, the defendants sought a protective order regarding electronically stored
information (ESI), claiming searching through their ESI would create significant costs and would
yield cumulative results. The defendants also relied on Fed.R.Civ.P. 26(b)(2) to make a costshifting
argument. The plaintiff argued the defendants had not reasonably complied with discovery
requests. Denying the protective order, the court determined the defendants did not sufficiently
demonstrate the inaccessibility of the requested ESI, or an undue hardship; therefore, cost-shifting
was not appropriate. Specifically, in alleging continued discovery of ESI would be unduly
burdensome, the defendants failed to offer evidence beyond a cost estimate, such as the number
of backup tapes, different methods used to store electronic information, or document retention
policies. The court ordered the parties to meet and confer to discuss ESI discovery, prior to
bringing any future motions.
� City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D.Wash. Feb. 25, 2008). In
this dispute over performance of a lease agreement, the plaintiff filed a motion to compel the
defendant to search and produce responsive e-mails from six of its eight members. Having
produced 150,000 e-mails from two of the members, the defendant objected to this request,
claiming the search would “increase the universe exponentially” and would generally produce
irrelevant documents. Finding a principal-agent relationship between the defendant and its
members, the court determined sufficient cause to demand the documents from its members as
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