Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

narrowed if not totally avoided through a pre-trial conference, the court agreed the defendants’
searches were wholly inadequate and found their failure inexcusable. Accordingly, due to their
repeated failure to conduct full and complete ESI searches, and the failure to retain a consultant to
conduct such searches, the court ordered the defendants to utilize a third party vendor and pay the
associated attorney fees and costs. The court declined to recommend default judgment, finding a
lack of bad faith and no non-speculative evidence of prejudice.
� Fed. Trade Comm’n v. First Universal Lending, LLC, 2011 WL 673879 (S.D. Fla. Feb. 17,
2011). In this Federal Trade Commission (FTC) investigation, the defendants sought to enjoin the
prosecution, alleging they were unable to mount a defense due to the FTC’s bad faith spoliation of
the defendants’ computer systems. After seizing the defendants’ business, the FTC employed a
third party to forensically image computers for use in its prosecution; however, the defendants did
not inform the FTC about numerous servers. Believing all computers were imaged, the courtappointed
receiver ordered all computers owned by the defendants to be wiped before being sold.
Rejecting the defendants’ argument that this loss was catastrophic to the case, the court
determined that relevant information was available in hard copy and was stored via a third party
cloud computing service. In denying the bad faith spoliation claim, the court also noted that the
destruction was carried out by the defendants themselves and that the FTC did not have an
obligation to preserve the evidence. Although acknowledging the loss presented additional
challenges in mounting a case and defense, the court found the obstacles were not insurmountable
and denied the motion.
� In re Fontainebleau Las Vegas Contract Litig., 2011 WL 65760 (S.D. Fla. Jan. 7, 2011). In this
bankruptcy litigation, the defendant claimed the third party waived privilege by producing three
servers in response to a subpoena and court orders without conducting a review for either privilege
or responsiveness. Seeking to use the information but avoid any adverse consequences, the
defendant offered to “eat” the cost of searching the massive document dump of approximately 800
GB and 600,000 documents for relevant materials in exchange for the right to review and use the
data free of the obligation to appraise or return any privileged documents. Reviewing the third
party’s conduct, the court found that its failure to conduct any meaningful privilege review prior to
production constituted voluntary disclosure and resulted in a complete waiver of applicable
privileges. Noting that more than two months after production the third party had not flagged even
one document as privileged, the court rejected its “belatedly and casually proffered” objections as
“too little, too late.” Accordingly, the court granted the defendant full use of these documents during
pretrial preparations of the case, but ordered it to timely advise the third party of any facially
privileged information it encountered upon review.
� Moore, II v. Shands Jacksonville Med. Ctr., Inc., 2010 WL 5137417 (M.D. Fla. Dec. 10, 2010). In
this employment discrimination litigation, the plaintiffs moved to compel discovery responses
including the reproduction of video surveillance footage. The defendants initially produced DVDs
containing the responsive footage; however, the plaintiffs were allegedly unable to view the content
without access to a particular type of media software. When informed by the defendants that the
necessary software was freely available on the Internet, the plaintiffs claimed they were “insulted”
and that accessing the program was not feasible and would cause undue hardship. Arguing the
“DVDs were rigged,” the plaintiffs sought reproduction. An unsympathetic court noted the plaintiffs
failed to specify the format prior to production and did not attempt to confer in good faith to resolve
the issue before seeking relief. Accordingly, the court denied the plaintiffs’ motion as it related to
reproduction of the surveillance footage, but ordered production of additional responsive video
footage.
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