Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Brigham Young Univ. v. Pfizer, Inc., 2012 WL 1302288 (D.Utah April 16, 2012). In this patent
litigation, the plaintiffs filed a fourth motion for sanctions against the defendants for alleged
discovery misconduct. Specifically, the plaintiffs argued that the defendants implemented
“unreasonable” records management practices and that they lost or destroyed critical documents in
violation of their duty to preserve. Additionally, the plaintiffs argued that the defendants had not
altered their conduct following a 2009 court order that imposed $850,000 in sanctions for the
defendants’ negligent discovery conduct that “closely approach[ed] a finding of bad faith.” With
regard to the defendants’ records management policies, the court found that changes in control of
documents over ten years old was the “natural result of business transactions,” and failed to see
any attempts by the defendants to confound discovery. With regard to the defendants’ duty to
preserve, the court was not persuaded by the plaintiffs’ argument that defendants’ were
“sensitized” by earlier industry lawsuits— which would impose an overbroad duty to preserve that
would make it “difficult for the [c]ourt to imagine how a party could ever dispose of information . . .
because of the potential for some distantly related litigation that may arise years into the future.” As
such, the court denied the entire motion, finding that although the defendants’ discovery conduct
was less than commendable at times, their overall conduct did not rise to a level warranting any of
the severe sanctions requested.
� Philips Elecs. N. Am. Corp. v. BC Tech., 2011 WL 677462 (D. Utah Feb. 16, 2011). In this
intellectual property litigation, the defendant objected to the magistrate judge’s recommendation
that the court strike the defendant’s answer, dismiss its counterclaims, enter a default judgment
and refer the case to the U.S. Attorney’s Office for investigation and criminal prosecution. Although
conceding that it engaged in discovery violations, the defendant argued it merely followed its
counsel’s advice, was not responsible for the actions of its employees and had largely remedied
any prejudice arising from the spoliation. Adopting the recommendation in full, the court found the
defendant’s destruction of at least 17,800 relevant documents, attempted cover-up of electronic
deletions after a third court order and misrepresentations while under oath were prejudicial and
interfered with the judicial process. In addition, the court determined the company was liable for the
actions of the employees – largely upper management and executives – who destroyed evidence
as a "company cannot act or have a mental state by itself." Finally, the court held both attorney
fees and terminating sanctions were appropriate given the egregious nature of the discovery
abuses and upheld the referral to the U.S. Attorney’s Office for perjury investigation.
� Daynight, LLC v. Mobilight, Inc., 2011 WL 241084 (Utah App. Jan. 27, 2011). In this intellectual
property dispute, the plaintiff and third-party defendants appealed the district court’s decision to
grant default judgment as a sanction for ESI spoliation. Rejecting the argument that the sanction
was excessive and unduly harsh, the court noted that Rule 37(g) of the Utah Rules of Civil
Procedure concerns discovery violations greater than simple discovery abuse (as opposed to Rule
37(b)(2)) and “does not require a finding of ‘willfulness, bad faith, fault or persistent dilatory tactics’
or the violation of court orders before a court may sanction a party.” Moreover, the court noted that
even if such culpability was required, the appellants willfully and in bad faith destroyed ESI, as
evidenced by a video wherein the appellants’ employees spoke of their destruction of potentially
harmful evidence. In addition, the employees committed such actions as “throwing the laptop off a
building; running over the laptop with a vehicle; and stating ‘[If] this gets us into trouble, I hope
we’re prison buddies.’” Finding this behavior demonstrated bad faith and a general disregard for
the judicial process, the court affirmed the default judgment and award of attorneys’ fees and costs.
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