Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

the defendant was in possession, custody or control of the e-mails at issue. The court, therefore,
ordered the defendant to produce e-mail from the remaining four members at issue, finding the
defendant’s claim of burden to be insufficient under Fed.R.Civ.Pro. 26(b)(2)(B).
� Am. Fast Freight, Inc. v. Nat’l Consolidation & Distribution, Inc., 2007 WL 3357694
(W.D.Wash. Nov. 7, 2007). In this suit alleging breach of contract, the plaintiffs filed a motion to
compel discovery of material relevant to the claim that the defendant intentionally used a corporate
alter ego to evade duties to the plaintiffs. The defendant argued that the sought after information
would not lead to the production of relevant information and that the burden of production
outweighed the plaintiffs’ likely benefit. The court ordered production consistent with the plaintiffs’
request and listed five factors relevant in determining the burden question: 1) the needs of the
case; 2) the amount in controversy; 3) the parties’ resources; 4) the importance of the issue at
stake; and 5) the importance of the proposed discovery. Further, court found that the breadth of the
discovery requests justified the defendant’s failure to produce documents and denied the plaintiffs’
request for attorney’s fees.
� Vaughn v. City of Puyallup, 2007 WL 3306743 (W.D.Wash. Nov. 6, 2007). In this termination suit,
the plaintiff alleged he was constructively discharged from his employment with the police
department. After serving the defendant with discovery requests, the plaintiff filed a motion to
compel, requesting the court to order the defendant to instruct its employees to conduct a diligent
search for responsive and relevant electronic documents, extend the discovery deadline and grant
appropriate sanctions including the costs resulting from the alleged discovery violations. Finding
the defendant fulfilled its duties and was not under a duty to comply with every discovery procedure
requested by the plaintiff, the court denied the plaintiff’s motion to compel and refused to impose
sanctions.
� Sims v. Lakeside School, 2007 WL 2745367 (W.D.Wash. Sept. 20, 2007). In this discovery
dispute, the defendant made an image of the plaintiff’s employer-owned laptop with no objection
from the plaintiff. Shortly thereafter, the plaintiff objected, prompting the defendant to file this
motion to compel review of the hard drive. The court found the plaintiff had no reasonable
expectation of privacy since the laptop was furnished by his employer and clearly articulated in the
employee manual. The court granted the defendant’s request to review the contents of the
plaintiff’s hard drive excluding web-based generated e-mails, communications between the plaintiff
and his spouse (marital communications privilege) and communications between the plaintiff and
his attorney (attorney client privilege). Agreeing with the defendant’s proposal as to how the hard
drive should be imaged, the court ordered the defendant to provide, at its expense, the parties with
a list of files from the plaintiff’s computer, allowing the plaintiff a chance to review for any privileged
files.
� Mother, LLC v. L.L. Bean, Inc, 2007 WL 2302974 (W.D.Wash. Aug. 7, 2007). In a suit alleging
false designation of origin, inter alia, the defendant motioned the court to sanction the plaintiff
based on its failure to comply with an earlier discovery order requiring the plaintiff to produce all
electronically stored information regarding its finances. In response to the motion, the plaintiff
offered to forgo the claim for lost profits and continue only on the disgorgement claim and argued
that the information sought could have been calculated from other information already in the
defendant’s possession. Realizing that the plaintiff’s argument was made following a deposition,
which was rescheduled due to the plaintiff being unprepared, and therefore disingenuous at best,
the court granted the defendant’s motion. The court ordered the plaintiff to pay reasonable
expenses, costs and attorney’s fees associated with the motion and ordered the lost profits claim
stricken from the record.
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