Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

employee’s files from her computer and they were merely duplicative of already produced
documents. The court, despite finding that the defendant breached its duty to preserve evidence,
refused to order sanctions, as there was no showing that the breach caused relevant documents
and information to be destroyed. With regard to the plaintiff’s inadequate search claims, the court
ordered the defendant to assure the plaintiff that all employees’ documents and computer files had
been produced. The court also ordered the defendant to produce an identical copy of the memory
stick used to save the key employee’s documents to ensure that all information had actually been
produced.
� Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 625809 (D. Kan. Feb.
23, 2007). In this discovery dispute in an antitrust litigation, the defendant moved the court to order
the plaintiff to supplement its privilege logs according to the parties’ pre-trial electronic discovery
protocol. The agreed upon protocol defined the scope of discoverable electronic information and
provided for specific procedures if any electronic documents were withheld from discovery based
on privilege. The defendant argued that the plaintiff did not follow the agreed upon protocol when
submitting its privilege log because it did not list sufficient information on the log in order to enable
the defendant to properly identify whether the plaintiff’s withheld documents were in fact privileged.
The defendant further argued that the plaintiff’s privilege log did not meet the standards as set by
local caselaw and the Federal Rules of Civil Procedure. The plaintiff argued that it did comply with
the privilege log and that the defendant itself did not comply with the agreed upon electronic
discovery protocol and therefore cannot be punished. The court held that some of the plaintiff’s
submissions were insufficient according to the parties’ protocol agreement and that the privilege
log must be supplemented in some areas. The court refused to order sanctions for the privilege log
insufficiencies.
� Thompson v. Jiffy Lube Int’l, Inc., 2007 WL 608343 (D. Kan. Feb. 22, 2007). In this class action
suit, the defendant filed for sanctions against the plaintiffs for spoliation of important documents
and information. The plaintiffs, under an order to produce witness names, addresses and phone
numbers, claimed that the information was lost when the hard drive possessed by its’ counsel
crashed and the information was not backed up for retrieval. The plaintiffs argued that it did not
intentionally or negligently destroy any witness information and that they attempted to salvage the
data stored on the hard drive but concluded that reconstructing the data would be too time
consuming and burdensome. The defendant argued that the plaintiffs had a duty to preserve the
information in a manner that would have prevented loss and, at a minimum, preserved the data in a
backup system. The court declined to issue sanctions against the plaintiffs stating that the
“plaintiffs’ failure to utilize a backup system for counsel’s computer is troubling” but sanctions were
inappropriate because the issues for trial had not yet been established. The court noted that “the
issue of spoliation may be revisited by motion after the issues in the case are better defined.” The
court did, however, allow the defendant to issue written deposition questions to plaintiffs’ counsel to
determine the extent of the lost data.
� G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007). The plaintiffs in
this case brought a claim of wrongful disclosure of medical information against the defendant
medical provider. The plaintiffs’ medical information was inadvertently disclosed when a computer
was placed on the curb for trash disposal. The computer was obtained by a passerby who
subsequently had the hard drive repaired. Once the computer was in working condition, it was
discovered that the computer contained confidential medical information of several of the
defendant’s patients. The plaintiffs filed a motion to compel the production of the computer and all
information contained on its hard drive. The defendant objected to the motion stating that it was an
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