Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

plaintiff produced a mere ten e-mail strings and a privilege log of 135 additional e-mails off the
DVD. The plaintiff blamed the discrepancy on a lack of computer expertise and argued against
production of the entire DVD as irrelevant and privileged. The court found the entire DVD relevant
to the underlying claim of long term disability and ordered that it be produced by the plaintiff,
subject to the provisions of FRCP 26(b)(2)(B).
� Tomlinson v. El Paso Corp., 2007 WL 2521806 (D.Colo. Aug. 31, 2007). In this retirement
benefits litigation, pension plan participants sought production of electronic pension plan records
from the defendant employer. The defendant maintained it could not produce the data because it
was in the possession of a third-party plan record-keeper. The plaintiffs argued that the defendant
had a duty under the Employment Retirement Income Security Act (ERISA) to maintain the data for
inspection or examination. In light of the defendant’s obligations under ERISA, the Court held the
data was in the defendant’s possession, custody or control within the meaning of Fed. R. Civ. P.
26(a)(1)(B) and subsequently ordered production of the requested documents.
� Metro Wastewater Reclamation Dist. v. Alfa Laval, Inc., 2007 WL 1160012 (D. Colo. Apr. 19,
2007). In a case involving claims of breach of contract, the defendant sought an order to compel
the plaintiff to produce certain data in electronic format and all electronic documents, including
archived or back-up e-mails and electronic files. The defendant specifically wanted electronic data
for the plaintiff’s personnel identified in its responses to the defendant’s discovery requests.
Although the plaintiff argued that the requested information was overly broad, unduly burdensome,
and costly, the court succinctly referred to Fed. R. Civ. P. 26 and held that the requested
documents were relevant to the issues of the case and were discoverable. The plaintiff was
required to produce all electronic documents, including the archived and back-up e-mails for every
employee referred to in their discovery responses.
� Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 2007 WL 684001 (D. Colo. Mar. 2, 2007).
In a trademark infringement claim, the plaintiff sought relief for alleged discovery violations.
Specifically, the defendant produced various electronic documents and issued a litigation hold
during the suit, but the plaintiff claimed that the defendant’s litigation hold came too late in the
litigation process and resulted in systematic spoliation. The plaintiff first sent letters to the
defendant regarding the trademark infringement in 2002 but did not initiate suit until 2004. The
defendant issued its litigation hold once the lawsuit commenced. Furthermore, the plaintiff claimed
the defendant failed to preserve hard drives of former employees. The defendant admitted that it
wiped the hard drives of several employees who left the company during this litigation according to
company policy. The plaintiff not only sought production of documents but spoliation sanctions. The
defendant argued that its litigation hold was timely applied when litigation was reasonably
foreseeable and that any spoliation of evidence was not purposeful conduct. Refusing to order
spoliation sanctions, the court found that the defendant’s litigation hold was properly issued upon
commencement of the lawsuit and that the plaintiff’s letters to the defendant before the suit was
actually filed did not give the defendant sufficient notice that a suit was likely to occur. The court
determined, however, that the defendant improperly destroyed evidence contained on former
employee hard drives because this evidence was destroyed after suit was initiated. As such, the
court found that the plaintiff was forced to incur additional expense in litigating the matter and
ordered $5,000 in monetary sanctions.
� Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006). In an age and sex
discrimination dispute, the court entered a stipulated order regarding the discovery of electronically
stored information. The order includes definitions of various e-discovery terms and sets forth a
number of discovery protocols. The order included a mandate that all electronic documents be
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