Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

the e-mails and attachments to be relevant in explaining the discrepancies in creation dates
identified by the plaintiff’s computer forensic expert, the court ordered their production. The court
also ordered production of Outlook mailboxes following a conference between the parties and their
experts to agree on a production process. Finally, the court allowed access to the hard drives
related to two e-mails, but ordered the parties to confer regarding the location of information
relating to the third e-mail’s creation.
� Spieker v. Quest Cherokee, 2008 WL 4758604 (D.Kan. Oct. 30, 2008). In this lawsuit seeking
class action certification, the plaintiffs filed a motion to compel production of electronically stored
information (ESI). The defendant argued undue burden and provided evidence that the estimated
cost of production, including collection, processing, reviewing and copying costs, would be
$375,000, while the plaintiffs’ claims were worth $100,000 or less. Determining the plaintiffs failed
to explain the relevancy of the disputed ESI in relation to class certification, the court denied the
plaintiffs’ motion without prejudice. As the plaintiffs were granted leave to re-file its motion to
compel, the court went on to address several additional issues raised by the parties. Ultimately the
court instructed the parties to discuss Fed.R.Evid. 502 in future production and cost discussions,
noting that Rule 502 was enacted “to reduce the costs of exhaustive privilege reviews of ESI.”
� White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D.
Kan. Aug. 7, 2008). In this wrongful termination litigation, the plaintiff moved to compel the
defendants to provide complete information on its document retention policy and how it may have
affected relevant electronically stored information. The defendants argued that providing such
information would be overly broad and unduly burdensome, and that such information was
irrelevant, proprietary and confidential. Determining the defendants had provided a sufficient
response to the discovery request via expert affidavit establishing an adequate search of the
electronic systems, the court denied the motion to compel. The plaintiff also sought reproduction of
certain electronic documents in native format, claiming that production of ESI in paper format was
contrary to the “reasonably usable” requirement of Fed.R.Civ.P. 34. The defendants argued that
converting the e-mails and attachments to PDF, then printing them and producing the printouts
constituted a reasonably usable form since the plaintiff failed to request a particular format.
Disagreeing with the defendants, the court held that the conversion of electronic documents to
paper did not satisfy the requirements under Fed.R.Civ.P. 34, and accordingly granted the
plaintiff’s motion to compel production in native format. The court also noted that this dispute could
have been avoided had the parties adequately discussed production format during the
Fed.R.Civ.P. 26(f) conference as required by Guideline 4(f) of the United States District Court for
the District of Kansas’ Guidelines for Discovery of Electronically Stored Information.
� Dean v. New Werner Holding Co. Inc., 2008 WL 2560707 (D.Kan. June 26, 2008). In this product
liability litigation, the plaintiff filed two motions to compel production and sought sanctions. The
plaintiff argued that the defendant failed to produce complete initial disclosures in response to the
interrogatories and production requests, including a failure to produce any electronic data, digital
media or metadata. The defendant claimed that the interrogatory requests were overbroad and
unduly burdensome, and that both the interrogatory requests and production requests sought
information not under its control. The defendant also represented to the court that it intended to
produce relevant electronically stored information (ESI) in its possession, but gave no anticipated
production date. Disagreeing in part with the defendant, the court determined the information
sought in the production requests was under the control of the defendant, but provided limitations
to some of the plaintiff’s interrogatory requests. The court also noted that the defendant already
had nearly six months to review and accumulate its ESI, and ordered production within 30 days.
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