Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� In re Fontainebleau Las Vegas Contract Litig., 2010 WL 4281808 (S.D. Fla. Oct. 25, 2010). In
this discovery dispute, the producing party sought entry of a confidentiality order, arguing it would
be impossible for the producing party’s attorney to review all of the documents before the deadline.
Disagreeing, the court recalled counsel’s earlier assurance that running a privilege review on the email
server with agreed-upon search terms would take less than a day and found no explanation
“why an attorney would need to personally examine ‘hundreds of thousands of documents’” since
the producing party previously represented that its e-discovery vendor was prepared to do exactly
that. Further, the court found that the producing party’s proposal, which would place the burden on
the requesting parties to return all of the documents copied off the servers, would risk disclosing
attorney work product. Denying the confidentiality order request, the court noted the producing
party may seek an extension of production deadlines via a verified motion if more time is needed to
produce the privilege log.
� Leor Exploration & Prod., LLC v. Aguiar, 2010 WL 3782195 (S.D. Fla. Sept. 28, 2010). In this
consolidated commercial litigation, the plaintiffs sought sanctions and contempt, alleging the
defendant violated court orders against witness tampering and hacked into the e-mail account of a
principal plaintiff to gain a litigation advantage. The plaintiff charged that the e-mail account
contained over 45,000 e-mails, including hundreds of attorney-client privileged communications, a
compilation of which the defendant forwarded to his counsel and others. Introducing numerous
factual, procedural and legal arguments, the defendant contended that the hacking was “spoofed,”
the plaintiff tried to “goad” the defendant by filing frivolous lawsuits and, that “there is nothing wrong
with wanting to win [the] lawsuit.” Disturbed by the defendant’s “win-at-all-costs mentality,” the
court found the defendant gained an unfair advantage by obtaining unauthorized access to the email
and acted in bad faith, despite having a mental illness. Thus, the court affirmed and adopted
the magistrate’s report and recommendation, striking the defendant’s pleadings at an alleged value
of $1 billion. Satisfied that this sanction was both necessary and sufficient, the court declined to
award attorneys’ fees and costs.
� Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 2010 WL 3368654 (S.D. Fla. Aug. 23,
2010). In this breach of contract litigation, the plaintiff sought sanctions based on the defendant’s
alleged spoliation of e-mails and other documents. While the court agreed the defendant violated
its duty to preserve by failing to timely issue a litigation hold, it found the defendant’s duty arose
over one year later than alleged by the plaintiff. Although a number of e-mails and attachments
were negligently destroyed during this time under a routine document destruction policy, the court
underscored that "[n]egligence…is not tantamount to bad faith," which is required for a default
judgment or adverse inference instruction. Furthermore, the court found the plaintiff obtained
sufficient evidence from deposition testimony and documents received from third parties, and
thereby failed to demonstrate that the spoliated evidence was crucial to establishing its claim.
Citing the plaintiff’s failure to satisfy the necessary elements, and noting that monetary sanctions
and targeted discovery had previously been awarded, the court denied the motion for additional
sanctions.
� Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 WL 55595 (M.D.Fla. Jan. 5, 2010). In
this ongoing insurance litigation, the district court considered the defendant’s motion for sanctions
and reviewed the magistrate judge’s previous recommendation of dismissal sanctions and
reimbursement of costs. See Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754
(M.D. Fla. Aug. 3, 2009). The plaintiffs claimed they were unaware of an automatic function of the
business’s computerized accounts management system that archived records after six months.
Citing the plaintiffs’ duty of preservation, failure to consult its software provider to attempt to
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