Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009). In this litigation,
the plaintiff sought default judgment or adverse inference sanctions claiming the defendants failed
to preserve and destroyed relevant documents, and also sought punitive monetary sanctions. The
defendants’ attorneys drafted a litigation hold, which the defendants failed to issue, and
subsequently hired an outside vendor to recover deleted e-mails after the defendants’ internal
information technology (IT) department failed to recover the documents. Finding the defendants’
local counsel had little to do with discovery responses, and that the other firm drafted the litigation
hold policy and made efforts to confirm client compliance, the court declined to sanction the
attorneys. Addressing the defendants’ conduct, the court held that while the defendants failed to
meet preservation obligations by failing to issue the litigation hold, the conduct was not intentional
and therefore did not warrant imposition of a default judgment or an adverse inference. However,
the court determined some sanctions were appropriate and awarded future deposition costs,
excluding attorneys’ fees, to the plaintiff. Additionally, if the plaintiff discovered a specific, relevant
e-mail had not been produced, it would be allowed to petition the court for further relief. Finally, the
defendants were ordered to pay $2,500 to the Tulsa County Bar Association to fund a seminar on
litigation holds and preservation of electronic data.
� Barnett v. Simmons, 2008 WL 4853360 (Okla. Nov. 10, 2008). In this breach of contract case, the
trial court required willfulness for the imposition of sanctions and the plaintiffs appealed. The Court
of Civil Appeals affirmed the trial court’s ruling, but remanded for consideration of whether
sanctions could be imposed for mere negligence. Both sides petitioned for writs of certiorari. In the
underlying dispute, the plaintiff sought unpaid royalties on an oil lease and the defendant filed a
motion to compel production of certain files on the plaintiff’s computer. Defendant’s motion to
compel was granted by the trial court. Subsequently, the plaintiff enlisted the help of several
computer experts to remove alleged viruses, neglecting to mention that the hard drive was the
subject of a court order. During the expert analysis, several files were deleted as a result of the use
of numerous data wiping programs. Citing Oklahoma’s discovery code §3237(B)(2) (which mirrors
Fed.R.Civ.Pro. 37(b)(2) and authorizes sanctions for the failure to comply with a court order) the
Court held that the trial court erred as a matter of law in determining that sanctions could be
imposed only upon a showing of willful conduct. The Court determined that willfulness is relevant to
the severity of sanctions imposed, but not to whether sanctions should be imposed. Accordingly,
the Court reversed and remanded for reconsideration of the defendants’ motion for sanctions.
� Oldenkamp v. United Am. Ins. Co., 2008 WL 4682226 (N.D.Okla. Oct. 21, 2008). In this case
involving the payment of health insurance benefits, the plaintiffs filed a motion to compel discovery
responses or an adverse inference for spoliation. The plaintiffs claimed responsive documents
were not produced, and that the defendants either destroyed or failed to preserve these documents
after notice of litigation. The plaintiffs sought recordings of telephone conversations, e-mails and
internal company communication reports. Arguing a litigation hold was in place, the defendant
claimed all e-mails were produced and no records were destroyed. Noting a party cannot be
ordered to produce documents which do not exist, combined with the defendant’s assertion under
oath that all responsive documents were produced, the court denied the motion to compel. The
court also denied sanctions finding the plaintiffs failed to produce evidence of intentional
destruction.
� The Ponca Tribe of Indians of Okla. v. Continental Carbon Co., 2006 WL 2927878 (W.D. Okla.
Oct. 11, 2006). In a tort action, the plaintiffs filed several motions requesting the production of
various electronic documents. After the defendant’s initial production of documents, the plaintiffs
filed motions to: compel mirror images of various databases; produce native file formats of e-mails;
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