Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

metadata or searchable text. Following production, the defendant identified issues with the
document format, to which the plaintiff stated problems with the initial vendor and noted they would
quickly process and produce documents with a new vendor. Shortly thereafter, the plaintiffs
refused to produce ESI in a different format because the $10,000 production cost was “prohibitive.”
Reviewing the facts, the court found that the plaintiffs appeared to have printed relevant ESI off
their server and scanned them back to PDF files. Although the parties did not agree to a specific
production format, the court found the plaintiff’s method in violation of Fed.R.Civ.P. 34’s
requirement that parties produce files as “ordinarily maintained” and “reasonably accessible” to the
opposition. In response to the plaintiff’s cost argument, the court found that the requested files—
which were readily available on the plaintiff’s server—were reasonable accessible and did not
present an undue burden per Fed.R.Civ.P. 26(b)(2)(B). Accordingly, the court granted the
defendant’s motion to compel and warned the plaintiffs that future discovery violations might
warrant sanctions.
� SPM Resorts v. Diamond Resorts Mgmt., Inc., 2011 WL 2650893 (Fla. App. 5 Dist. July 8,
2011). In this business litigation, the plaintiff (who is the defendant in the underlying case) sought
certiorari review of a circuit court decision ordering it to pay $20,000 – and potentially more in the
future – to conduct computer searches to comply with the defendant’s (the plaintiff in the underlying
case) discovery request. The plaintiff argued the court order was unreasonable and unduly
burdensome, and marked a departure from the "essential requirements of the law." Agreeing with
the plaintiff’s arguments, the court believed ordering the plaintiff to split the costs associated with
engaging a computer expert to inspect its computer systems was unreasonable. Further, the court
noted that "placing a substantial financial burden on a party relating to the production of its
adversary’s document request does nothing more than require a party to fund its adversary’s
litigation" which is not permitted by the Rules of Civil Procedure. Accordingly, the court granted the
plaintiff’s request and quashed the trial court’s order.
� Point Blank Solutions, Inc. v. Toyobo Am., Inc., 2011 WL 1456029 (S.D. Fla. Apr. 5, 2011). In
this products liability litigation, the plaintiffs sought ESI spoliation sanctions contending the
defendants were under a general duty to preserve due to a separate government investigation and
other reasonably foreseeable industry-wide litigation. Denying they acted in bad faith or that any
grounds for sanctions existed, the defendants claimed they had “no inkling” the plaintiffs would
pursue litigation and further argued there was no jurisdictional support for an industry-wide
anticipation of litigation theory. Agreeing with the defendants, the court found the preservation duty
was owed only to other parties and refused to "establish some type of free-floating or shifting duty"
which they could latch onto. Further, the court asserted it would not simply assume destruction
based on the number of e-mails already in the plaintiffs’ possession and noted that the plaintiffs
had virtually all of the documents in their possession via other means. Finding no evidence of bad
faith – a requirement for the imposition of an adverse inference in the Eleventh Circuit – the court
held there was no basis for sanctions and denied the motion.
� Seven Seas Cruises S. DE R.L. v. V. Ships Leisure SAM, No. 1:09-cv-23411-UU (S.D. Fla. Feb.
19, 2011). In this breach of contract dispute, the plaintiffs requested sanctions and production,
alleging the defendants intentionally and continuously failed to produce all responsive ESI. The
defendants conceded not all relevant ESI was produced, noting that "in hindsight, an E-discovery
consultant/vendor should have been retained." However, the defendants argued that they had
agreed to re-run recent searches, that they would run searches on additional custodians identified
by the plaintiffs and that the plaintiffs had access to much of the information via copies of
correspondence between the parties. Noting that much of the dispute could have been significantly
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