Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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eproduction would be unnecessarily burdensome. Reviewing the GDPA, the court found nothing that barred discovery of personal information provided customer consent was obtained, and even if disclosure was prohibited under the GDPA, the U.S. Supreme Court has held that blocking statutes do not deprive U.S. courts of the power to compel production from a foreign party subject to its jurisdiction. See Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522 (1987). Addressing the production format dispute, the court determined that scanned PDF images are not readily usable as required by Fed.R.Civ.P. 26(b)(2)(E)(ii) and ordered the defendant to reproduce the requested documents in native form or in an electronically generated PDF format. � Flying J Inc. v. Pilot Travel Ctrs. LLC, 2009 WL 1834998 (D. Utah June 25, 2009). In this litigation, the defendants filed a motion to compel production of the plaintiffs’ credit card transaction database and e-mails responsive to 28 new search terms. While the plaintiffs were initially willing to comply with the transaction database request, they conditioned production seeking a comparable database from the defendants and restriction of database use from other cases where the plaintiffs are not a party. Denying the plaintiffs’ arguments, the court determined the production of a comparable database and restricting the plaintiffs’ database were not issues for the court to determine in the present motion. The court also found the plaintiffs’ claims that production would be overly burdensome unpersuasive, determining the database to be relevant and accessible. Regarding the additional search terms request, the court again found the plaintiffs’ arguments unpersuasive, holding that the defendants’ request was timely made and was not overly burdensome as the terms were likely to produce relevant material. However, the court ordered the defendants to justify each of the chosen additional terms. � Phillip M. Adams & Assocs., LLC v. Dell, Inc., 2009 WL 910801 (D.Utah Mar. 30, 2009). In this patent infringement litigation, the plaintiff inferred that spoliation occurred based on the defendants’ non-production of certain relevant evidence and sought sanctions. The defendants explained that the e-mail servers were not designed for archival purposes and that employees should locally preserve e-mails of long term value (as determined by each individual employee). Agreeing that the defendants should possess far more evidence than was produced, the court considered when the defendants’ preservation duty arose. The court determined the duty arose around 1999/2000 based on the litigation environment surrounding the specific subject matter of this patent dispute, not in February 2005 when the defendants learned that the plaintiff may bring a lawsuit. The court also denied application of the safe harbor provision, citing an e-discovery expert’s declaration that failed to state the destruction was a result of a "routine, good-faith operation." Finally, the court found that the defendants’ "[irresponsible data retention] practices invite the abuse of others" and that prejudice may be considerable. However, the court decided that appropriate sanctions could not be determined until after discovery closed and ordered the parties to provide further briefing on the prejudice suffered. � ClearOne Commc’ns, Inc. v. Chiang, 2008 WL 920336 (D.Utah April 1, 2008). In this trade secret litigation, the plaintiff moved for entry of a search protocol order establishing guidelines for searching mirror images and identifying relevant and responsive documents. Previously the plaintiff accepted search terms proposed by the defendants with five additions, but disputes arose over the conjunctive or disjunctive use of the terms. The defendants argued it was reasonable to search conjunctively (i.e., require connectors between the search terms) in order to narrow the results to relevant subjects. Analyzing the advantages and disadvantages of both search techniques, the court ordered “license” terms to be searched disjunctively and “name” terms to be searched conjunctively. 286
� ClearOne Communications, Inc. v. Chiang, 2008 WL 704228 (D.Utah Mar. 10, 2008). In this litigation involving trade secret misappropriation, the plaintiff filed a motion for sanctions alleging the defendants misrepresented material facts during discovery and withheld a “smoking gun” email. The defendants claimed the misrepresentation was merely a misunderstanding by their Fed.R.Civ.P. 30(b)(6) witness, who spoke English only as his third language. Further, the defendants argued they were not in possession of the e-mail in question as their computer system was not programmed to save sent e-mails. Suspicious of the defendants’ computer system but unable to locate the e-mail in question, the court found the defendant’s actions sanctionable. The court was unwilling to enter default judgment as it had not previously issued a warning and instead issued an adverse jury instruction relating to the misrepresentation of the 30(b)(6) witness, allowing the jury to consider the misrepresentation when determining the witness’ credibility. � United States v. Bhownath, 2007 WL 2570199 (D.Utah Aug. 31, 2007). In a criminal software piracy investigation, federal agents obtained and executed a warrant to search all computer systems in the defendant’s home. The defendant argued the warrant was impermissibly overbroad and moved to suppress evidence obtained in the search. Disagreeing with the defendant’s position that the agents’ keyword searches of his computer files were the digital equivalent of "rummaging," the court denied the motion. The court reasoned that if agents were not allowed access to all files on a computer to search for files and folders relating to a case, any defendant would be able to hide evidence of illegal conduct in unlikely places on a computer. � Hentsch Henchoz & Cie v. Gubbay, 97 P.3d 1283 (Utah 2004). Arguing that a forum selection clause made venue in a Utah court improper, the defendants sought to dismiss a case arising from investment fraud accusations. After a series of hearings, the district court determined the forum selection clause was unfair and should be disregarded. The court ordered the defendants to comply with the plaintiff’s outstanding discovery requests. Contrary to the district court’s discovery orders, the defendants shipped all of their documents, records, and computer hard drives from Utah to Spain. The plaintiff then moved for summary judgment on three of its claims, and the district court granted the motion entering a $24.73 million judgment against the defendants. The defendants appealed, again claiming the suit should have been dismissed pursuant to the forum selection clause. Arguing for dismissal of the appeal, the plaintiff contended the defendants “repeatedly and willfully disobeyed [the district court’s] orders… [and] destroyed evidence.” In response, the defendants declared they did not willfully disobey discovery orders, but that they “simply declined to participate substantively in the proceedings.” Rejecting the defendants’ argument, the appellate court stated the defendants were obligated to comply with the court’s discovery orders, even if they were erroneous. The appellate court gave the defendants 30 days to comply with the discovery orders, indicating that any further noncompliance by the defendants would result in dismissal of the defendants’ appeal. � United States v. Tucker, 150 F. Supp. 2d 1263 (D. Utah 2001). The defendant was found guilty of knowing possession of child pornography. The conviction was largely supported by computer forensic evidence found in the form of deleted Internet cache files that were saved to the defendant’s hard drive when he viewed the various websites. See also United States v. Tucker, 305 F.3d 1193 10th Cir. 2002). � Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295 (D. Utah 1999). A federal district court found that a series of intra-company e-mails offered “direct evidence” that the corporation was actively trying to destroy a competitor. � Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D.Utah 1998), rev’d on other grounds, 222 F.3d 1262 (10th Cir. 2000). In an unfair competition case, the defendant moved for sanctions 287
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Electronic Discovery and Computer F
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Florida ...........................
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protocol. The search protocol allow
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Finally, the court expressed disple
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should rely on IT professionals to
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to compel, the plaintiff sought pro
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had been withheld, and if e-mails w
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the defendants continued to destroy
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ordering recovery and production of
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evidence supporting this contention
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ehavior as a direct contradiction o
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the effort required to conduct a pr
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defendant’s motion to dismiss was
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under Rule 803(6) of the Federal Ru
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pay judgment in favor of the plaint
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equally all costs associated with h
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subpoena would not “prejudice the
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stopped the automatic deletion of e
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far produced refuted an inference o
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commentary that “privacy is no lo
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documents since resorting to the Ha
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� Arista Records LLC v. Usenet.co
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expense of production. The court he
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substantive. Rejecting the SEC’s
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claimed these requests raised user
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efused to issue adverse jury instru
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evidence would have been favorable
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failed to issue a proper litigation
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tapes were meant only for disaster
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cost and time considerations requir
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defendant’s investment officer wa
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Aug. 22, 2003). Stating the order w
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which the court issued severe sanct
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ordered a computer forensics examin
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evidence, and/or failed to make rea
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information from its computer netwo
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production was incomplete, and move
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falsely claimed to have been raped
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� State v. Voorheis, 2004 WL 2581
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sanctions were disproportionate and
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the defendants were responsible for
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was not equitable to force the defe
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choose not to heed the court’s or
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magistrate judge improperly minimiz
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appropriate. The court refused to m
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plaintiffs waived any privilege cla
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defendants failed to preserve and d
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portions of the plaintiff’s Faceb
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court denied sanctions, but issued
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equire the non-party to allow the p
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server. The court also granted the
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preserve the computer’s memory .
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� Itzenson v. Hartford Life and A
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� Eckhardt v. Bank of America, 20
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� Bank of Amer. Corp. v. SR Int
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� Morris v. Metals USA, 2011 WL 9
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did not address the employer’s ab
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� Mezu v. Morgan State Univ., 201
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any such information was irrelevant
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plaintiff’s motion for sanctions
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at Dulles airport, the defendants f
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documents in a manner that was resp
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“destroyed some documents because
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“would be even more reliable than
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defendant’s withholding of respon
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when it was reasonably anticipated.
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Mississippi � PIC Grp., Inc. v. L
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he allegedly sent to the victim. Th
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absent a motion to compel. The cour
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disclosure of the hard drive to the
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to all payment histories of account
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aware that a party in litigation mu
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not clear enough to warrant enforce
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ecause the computer expert testifie
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database contained proprietary info
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should have provided the substance
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protective relief (including cost s
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drive from a vital computer in the
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preserve ‘every shred of paper, e
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defendant plainly manifested an exp
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argued that it previously produced
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� United States v. Premera Blue C
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overwritten] well before th[is] law
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documents for use in her wrongful d
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devices that contain relevant elect
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asserting that the Federal Rules of
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excuse” for the obvious discovery
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defendants were not entitled to rec
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� Whitlow v. Martin, 2009 WL 3338
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documents belonging to the plaintif
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the filing of the claim, its failur
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confidential customer lists, quotat
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defendants at a cost of more than $
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expert. The court also held that an
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electronic discovery of the defenda
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within the plaintiff’s control an
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� Perfect Barrier LLC v. Woodsmar
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citing the defendants’ considerab
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� Kasten v. Doral Dental USA, LLC
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destruction of evidence indicating
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incident, her attorney’s letter c
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question to this court to determine
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� State v. Levie, 695 N.W.2d 619
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instruction because the plaintiff i
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plaintiffs’ alleged failure to me
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including those from their homes. A
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litigation was pending, he had not
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the illegal images onto his compute
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portions of the e-mail were not pro
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the resources to oppose the subpoen
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drive in temporary internet file fo
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"wireless sniffers" to intercept ap
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communications sent over her work c
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court also determined the attorneys
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� Keithley v. Homestore.com, Inc.
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destroyed relevant electronic docum
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personal sanctions due to an absenc
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Page 293 and 294: � In re Fontainebleau Las Vegas C
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Page 313: search,” the court ordered the De
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