Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

defendant’s employees continuously destroyed (by overwriting) electronic evidence. The court
criticized the defendant’s expert for not making an image copy of the drive at issue for production.
� Computer Assocs. Int’l, Inc. v. American Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990). The
court issued a default judgment where the defendant revised portions of the source code after
being served in the action, and thus put on notice that the source code was irreplaceable evidence.
Revised code was a central piece of evidence to the litigation.
Kansas
� Chura v. Delmar Gardens of Lenexa, Inc., 2012 WL 940270 (D. Kan. Mar. 20, 2012). In this
employment discrimination case, the plaintiffs motioned to compel the defendant to search for and
produce ESI responsive to several requests for production and provide supplemental answers to
the plaintiffs’ interrogatories. Identifying the defendant as a large corporate body, the plaintiffs
asserted that typical production in this type of litigation would include e-mails between managers
and witnesses regarding the plaintiffs’ complaint, reports to and from the corporate office, and
investigation notes compiled by human resources. However, the defendant did not produce any
written complaints, e-mails, or phone logs, arguing instead that “it cannot produce what does not
exist.” Reviewing the defendant’s argument, U.S. Magistrate Judge Waxse considered it
“questionable” that none of the defendant’s investigating employees exchanged e-mail or other
correspondence on the matter. Finding insufficient evidence to opine on the defendant’s
preservation and search methods, the court ordered an evidentiary hearing to gauge the
reasonableness of the defendant’s conduct.
� Rajala v. McGuire Woods, LLP, 2010 WL 2949582 (D. Kan. July 22, 2010). In this securities, inter
alia, litigation, the defendant moved for an entry of a clawback provision that would govern
inadvertent disclosure and protect against privilege waiver, arguing the provision was necessary to
“prevent contentious, costly, and time consuming discovery disputes.” The plaintiff argued that, in
light of Fed.R.Evid. 502, a clawback agreement was not justified and that such an agreement
would prevent arguments relating to care and reasonableness if documents were inadvertently
produced. Despite the plaintiff’s arguments and the parties’ inability to reach an independent
agreement, the court found that “this case is precisely the type of case that would benefit from a
clawback provision.” Based on the substantial amount of ESI involved and the defendant firm’s
duty to protect its extensive client base, the court determined that the risk of inadvertent disclosure
was high and that “[s]uch a provision will permit the parties to conduct and respond to discovery in
an expeditious manner, without the need for time-consuming and costly pre-production privilege
reviews” – an outcome the court deemed consistent with the intent behind the recent privilege
waiver amendments and rules.
� Cherrington Asia Ltd. v. A & L Underground, Inc., 2010 WL 126190 (D.Kan. Jan. 8, 2010). In
this discovery dispute, the plaintiffs sought monetary sanctions for costs incurred as a result of the
defendants’ alleged discovery violations, which included a “document dump” of the computer hard
drive, and a failure to adequately prepare witnesses and produce requested financial records. The
defendants argued that the computer hard drive was produced in the format maintained in the
normal course of business and that, upon court instruction, a search engine was loaded to allow
the plaintiffs to search the hard drive. Despite finding the defendants’ cooperation efforts
unacceptable, the court denied the plaintiffs’ motion in relation to the “document dump” as untimely
since the plaintiffs were aware of the defendants’ actions fifteen months prior to filing the motion.
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