Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL 641297 (D.Colo. Mar. 10, 2009). In this
employment contract litigation, the plaintiff sought a court-ordered e-discovery plan for inspection
of the mirror image of the defendant’s hard drive. Granting the motion, the court set forth the
following protocol: the defendant shall redact privileged and confidential data from the mirror image
hard drive, and provide a detailed privilege log and the redacted mirror image to the plaintiff; the
parties shall then confer and agree on search terms with assistance from their respective forensic
experts; the plaintiff shall conduct the forensic search and provide the defendant with a Bates
labeled hard copy of relevant ESI which the defendant will then review for responsiveness and
privileged data, providing a privilege log as necessary.
� Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL 482603 (D.Colo.
Feb. 25, 2009). In this real estate litigation, the defendants objected to the magistrate judge’s
recommendation regarding the plaintiffs’ motion for sanctions for the destruction of evidence. The
plaintiffs’ expert concluded the defendants engaged in a systemic effort to erase pertinent data
based on evidence of wiping software and reformatting. The magistrate judge found the
defendants’ actions to be willful and in bad faith after the duty to preserve arose. The magistrate
judge therefore recommended an adverse inference jury instruction, a monetary award associated
with attorneys’ fees and costs as well as the costs associated with the forensic examination of the
computer files. Finding the recommendation based on substantial evidence, the court adopted the
magistrate’s recommendation and warned the defendants that any further sanctions would be more
severe and may include a default judgment.
� Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D.Colo. July 1, 2008). In this
insurance contract dispute, the defendants moved for a protective order to prevent the plaintiff from
inquiring into various topics contained in the plaintiff’s Rule 30(b)(6) Notice of Deposition. The
defendants argued that the plaintiff’s notice of the topic regarding “knowledge concerning the
storage, preservation and backup” of e-mail was irrelevant to the breach of contract claim. The
plaintiff stated that he communicated with the defendants via e-mail about his claim, requested all
e-mail relating to his claim, and yet received almost no e-mail. The court held that the plaintiff had
not met his burden of establishing the topic’s relevance after noting that the defendants asserted
the plaintiff had not referenced any specific missing e-mails. The court granted the defendants’
motion for a protective order in part and denied in part; the court granted the motion with respect to
the topic of e-mail storage, preservation and backup.
� Palgut v. City of Colorado Springs, 2007 WL 4277564 (D.Colo. Dec. 3, 2007). In this suit, the
plaintiff filed a motion to reconsider discovery rulings made by the magistrate judge and to compel
responses to previous discovery requests and further discovery to prove unlawful spoliation of ESI.
The court made several findings: the plaintiff’s requests were overbroad and unduly burdensome
(affirming a prior ruling); the defendant completed an adequate search for all relevant ESI and
agreed to complete and pay for an additional search; according to Rule 34 of the FRCP, the
plaintiff was no more entitled to the defendant’s ESI than to a warehouse storing paper documents;
and the defendant’s backup tapes were not reasonably accessible due to the lack of hardware to
access them and the cost of restoration, which outweighed any possible return of relevant
information. Based on these findings, the court denied the plaintiff’s motions and ordered each
party to pay their own attorney fees.
� Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D.Colo. Nov. 13, 2007). In this
lawsuit, the plaintiff brought a bad faith claim against her disability insurer. During discovery, the
defendant sought a DVD produced by the University of Denver containing over 4,000 e-mails with
1,500 attachments sent or received by the plaintiff while she was at the University. In response, the
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