Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

elating to any ex parte communications regarding the denial of the plaintiffs’ permits. The
defendant contended that all requested ESI was automatically deleted and overwritten by the
defendant’s archiving system on its disaster back-up tapes. The plaintiffs disputed the defendant’s
contention and argued that even if the disputed ESI was deleted, the defendant still had a duty to
preserve the potential evidence and argued that the defendant should be sanctioned for failure to
preserve the data. The court found that the defendant fulfilled its discovery obligations and
adequately explained the non-existence of any ESI requested by the plaintiff. The defendant
provided several affidavits from witnesses stating there was no ESI to produce to the plaintiffs.
Furthermore, the court found the failure to preserve the e-mail evidence was reasonable since the
duty to preserve the documents and the likelihood of litigation did not arise until well after the
documents were overwritten on the back-up tapes. Moreover, the court used a cost-benefit
balancing test called the “marginal utility test” to find that the production of the requested ESI would
be unduly burdensome and costly since the “likelihood of retrieving these electronic
communications is low and the cost high.”
� Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 (D. Kan. Apr.
9, 2007). In this antitrust litigation, the defendant filed a motion to compel the plaintiff to produce a
Rule 30(b)(6) witness who could testify about the specific produces and practices relating to the
organization’s handling of electronic data. The defendant also requested an award of costs
incurred in bringing the motion and taking the additional deposition. The plaintiff provided its Chief
Executive Officer for the deposition; however, during the deposition it was apparent that the CEO
was unprepared or did not have the requisite knowledge to adequately answer the questions about
the plaintiff’s computer systems and electronic discovery practices. The plaintiff argued that the
topics of the deposition were overly broad and that it did not have enough time to prepare for the
extensive deposition. Finding that it was the plaintiff’s “choice to use a designee without substantial
personal knowledge of the noticed topics, and the fact that [the CEO] required extensive education
about the noticed topics is a burden that must be borne by [the plaintiff] alone,” the court ordered
an additional deposition about the unanswered electronic data topics. The court refused to award
costs or sanctions because the parties did not discuss the narrow issue of compliance with Rule
30(b)(6) during the initial meet and confer conference.
� Bolton v. Sprint/United Mgmt. Co., 2007 WL 756644 (D. Kan. Mar. 8, 2007). In an employment
discrimination suit brought by employees terminated in a reduction-in-force, the plaintiffs compelled
the defendant to produce certain electronic documents, such as databases and spreadsheets,
related to the terminated employees. The defendants argued that the requests were irrelevant,
overly broad, and unduly burdensome. In addition, the defendants opposed the plaintiffs’ demand
for information in a native format with corresponding metadata, claiming that a native production
would be difficult and time-consuming and would reveal privileged information. The court granted
some of the plaintiffs’ document requests stating that the benefit of the information outweighed the
defendants’ burden, but denied other document requests as overly broad. For the document
requests that were granted, the court stated that the plaintiffs’ requests should be produced “in the
form in which it is currently maintained, but in electronic format to the extent possible.”
� School-Link Techs., Inc. v. Applied Res., Inc., 2007 WL 677647 (D. Kan. Feb. 28, 2007). In a
contract dispute, the plaintiff sought sanctions against the defendant for its failure to implement a
litigation hold to preserve relevant documents in the custody of one of its key employees and for its
failure to adequately search for and gather responsive discovery documents. The key employee
testified that she was never contacted by the defendant to search for relevant documents but that
she searched her own computers under her own accord. The defendant eventually produced the
273