Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

delays and financial harm. In support of the motion, the defendant offered a hypothetical scenario
to demonstrate that it, along with the court and nonparties, would be burdened by discovery
proceedings, protracted discovery disputes and piecemeal litigation. Finding the defendant failed to
provide specific demonstrations of fact to establish good cause, and that granting the motion would
cause piecemeal litigation and run counter to the public interest, the court denied the protective
order.
� Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D.Colo. June 15, 2010). In this
discovery dispute, the defendants objected to the special master’s ruling, arguing the sanctions
imposed (jury instruction and expenses) were not severe enough to address the prejudice caused
by the plaintiff’s willful spoliation of approximately 43 hard drives. The defendants requested the
entirety of fees and costs associated with litigating the sanctions motion and sought dismissal.
Addressing the dismissal request, the court found that the mitigation of actual prejudice through the
jury instruction and the plaintiff’s otherwise responsive production warranted a lesser penalty. The
court also noted there was no evidence the plaintiff acted in a "premeditated” intentional manner,
but rather was merely negligent. Turning to the defendants’ request for $130,000 in expenses, the
court noted that the defendants spent "too much time and money . . . on this matter." However, in
light of the nature of the wrongful conduct and the importance of the evidence destroyed, the court
awarded the defendants $89,395.88 in attorneys’ fees and costs.
� Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 502721 (D.Colo. Feb. 8, 2010). In this
misappropriation of trade secrets litigation, the court addressed several motions, notably the
defendants’ motion for a protective order. The defendants argued the production requests
exceeded the discovery permitted by a previous court order, imposed an unreasonable expense
and burden, and sought information that was duplicative or not likely to lead to the discovery of
admissible evidence. Noting the burden required for a protective order cannot be met with “bald
generalizations,” the court found the defendants’ undue burden and expense arguments regarding
the discovery of ESI unpersuasive. The defendants did not provide specific information regarding
ESI storage, the number of backup or archiving systems in place, or the capability to retrieve
information. Rather the defense counsel argued that producing this information would affect
profitability and client service. Determining this statement to be the “e-discovery equivalent of an
unsubstantiated claim that the ‘sky is falling,’” the court denied the defendants’ motion in part and
ordered the defendants to supplement their discovery responses. The court also noted that ediscovery
“has simply become too expensive and too protracted to permit superficial compliance
with the ‘meet and confer’ requirement” under the Fed.R.Civ.P. and endorsed the Sedona
Conference Cooperation Proclamation.
� Silverstein v. Federal Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009). In this
discovery dispute, the plaintiff filed a motion for determination of privilege waiver regarding a single
relevant document, arguing its production resulted in a subject matter waiver. After its initial
determination that the document was protected by both attorney-client privilege and work product,
the court relied on Fed.R.Evid. 502(b) to establish the scope of the waiver. First, the court
determined the disclosure was intentional—not inadvertent—as defined by Rule 502, since it was
originally examined and withheld by the defendants’ counsel. Citing the defendants’ knowledge of
the production and failure to take reasonable steps to rectify the erroneous disclosure, the court
held that the defendants had intentionally disclosed the material to gain advantage in litigation,
which justified a subject matter waiver. Noting the plaintiff was not entitled to a "discovery free-forall,"
the court also held that opinion work product would remain protected.
265