Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

ecause “the header information was automatically generated by the computer hosting the
newsgroup each time Hamilton uploaded a pornographic image to the newsgroup.”
� United States v. Meienberg, 263 F.3d 1177 (10th Cir. 2001). The government introduced printouts
of computerized records and the defendant objected to these print-outs based on lack of
authentification. The court held that the government met its burden by presenting a witness who
testified that the print-outs were a record of all transactions. The court held that this was in
accordance with Federal Rule of Evidence 901(b)(7).
� Hardison v. Balboa Ins. Co., 4 Fed. Appx. 663 (10th Cir. 2001). To prove that an insurance
company had followed notice of cancellation requirements, the court admitted computer files and
print-outs regarding how the cancelled policy was processed and maintained. The court stated that
computer business records are admissible under Rule 803(6) “if the offeror establishes a sufficient
foundation in the record for [their] introduction.”
Colorado
� Grabenstein v. Arrow Elecs., Inc., 2012 WL 1388595 (D. Colo. April 23, 2012). In this
employment discrimination and wrongful termination case, the plaintiff sought sanctions against the
defendant former employer for deletion of e-mails related to the plaintiff’s request for disability
benefits. At issue in this case was whether the defendant had a duty to preserve the e-mail in
question before it had notice of impending litigation, and whether such deletion occurred in bad
faith so as to warrant sanctions. The plaintiff argued that the defendant had such a duty under an
EEOC retention regulation, 29 CFR § 1602.14, requiring “an employer covered by [the ADA] to
retain all personal records” for one year after their creation, or “until the dispute has been resolved”
when a discrimination charge has been filed against the employer. Although the court found the
defendant adhered to its document retention policy, the defendant nonetheless had a duty to
preserve under the EEOC regulation. In response to allegations of bad faith, however, the court
found that the plaintiff did not sufficiently substantiate that the defendant deleted the e-mails with
the intent to withhold unfavorable information. Thus, the court found no bad faith in the defendant’s
adherence to a good faith document retention policy and denied the plaintiff’s motion for sanctions
� McCargo v. Texas Roadhouse, Inc., 2011 WL 1638992 (D. Colo. May 2, 2011). In this racial
discrimination litigation, the plaintiff sought spoliation sanctions based on the automatic destruction
of surveillance video evidence, which included footage from multiple work shifts that allegedly
showed discrimination and a persistently hostile work environment. Arguing it could not have
reasonably anticipated litigation concerning events other than one particular incident, the defendant
claimed its duty to preserve evidence was limited to video of that single work shift. Disagreeing, the
court found the duty to preserve triggered when the plaintiff filed a formal complaint, putting the
defendant on notice to preserve all existing and future video that included the plaintiff. Noting the
defendant’s conduct went “well beyond corporate arrogance,” the court found the plaintiff was
prejudiced by the recordings which the defendant willfully and in bad faith chose not to preserve.
Accordingly, the court issued both mandatory and permissive adverse inference instructions as
well as attorney fees relating to the spoliation motion.
� Christou v. Beatport, LLC, 2011 WL 650377 (D. Colo. Feb. 10, 2011). In this antitrust litigation,
one of the defendants moved for a protective order staying all discovery pending the adjudication
of its motion to dismiss. Opposing the motion, the plaintiff argued that if discovery did not proceed,
information stored by nonparties would be lost or destroyed pursuant to automatic retention
schedules, or might be archived and require increased costs to restore, ultimately resulting in
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