Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

etrieve the archived documents, and the minimal effort and expense required for retrieval, the
court denied the plaintiffs’ request to be allowed to cure the production defect without sanctions.
The court also noted the court orders were “clear, unambiguous and frequent” and that the
plaintiffs’ willful, bad faith actions “evidenced a pattern of inexcusable disregard for the authority of
[the] court.” Thus, the court found dismissal of the claims arising from or related to the documents
appropriate and ordered the plaintiffs to pay the defendant $75,000 in expenses and costs.
� Chick-Fil-A and CFA-NC Townridge Square, LLC v. ExxonMobil Corp., 2009 WL 3763032
(S.D. Fla. Nov. 10, 2009). In this environmental litigation, the plaintiffs sought production of all work
product-protected documents related to the subject matter of a privileged memorandum that the
defendant voluntarily produced. Following the court’s determination that the defendant’s intentional,
voluntary disclosure to the plaintiffs waived the work product protection, the defendants argued that
the waiver’s scope should be limited to the information actually disclosed. Turning to Fed.R.Evid.
502(a), the court determined that disclosure of work product results in a subject matter waiver only
if the additional materials "ought in fairness to be considered together" with the memorandum.
Finding a subject matter waiver to be warranted, the court relied on federal case law, interpreting
Rule 502(a) to determine that subject matter waiver was limited to fact work product. Therefore, the
court granted the plaintiffs’ motion in this respect and ordered the defendant to produce fact work
product materials.
� Swofford v. Eslinger, 2009 WL 3818593 (M.D. Fla. Sept. 28, 2009). In this §1983 claim asserting
excessive force, the plaintiffs sought sanctions, alleging the defendants destroyed key evidence,
including a laptop and e-mails. Despite receiving preservation notices from the plaintiffs, the
defendants’ in-house counsel only forwarded a copy of the letters to senior-level employees (who
did not ensure other employees complied with the defendants’ preservation obligations) and failed
to issue a litigation hold. Citing Zubulake V, the court found that it is insufficient for in-house
counsel to simply notify employees of preservation notices, but rather counsel "must take
affirmative steps to monitor compliance" to ensure preservation. Finding sanctions appropriate for
the preservation failures, the court issued an adverse inference sanction for the laptop wiping and
deletion of e-mails. The court also awarded attorneys’ fees and costs to the plaintiffs, holding the
defendants and in-house counsel jointly and severally liable.
� Leor Exploration & Prod. LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009). In this
business litigation, the plaintiffs objected to the special master’s ruling regarding two exhibits – both
e-mails – in which the first was classified as attorney-client privileged and the second as protected
work product. Discussing the first exhibit, the court found there was no reasonable expectation of
privacy because the e-mail was sent by the defendant (a former employee of the plaintiffs) through
the plaintiffs’ server. The plaintiffs’ employee handbook stated that all electronic communications
were owned by the plaintiffs and that no expectation of privacy existed. Thus, the court overruled
the special master’s report and found no attorney-client privilege existed with the first exhibit. The
court also granted the plaintiffs’ objection regarding the second exhibit because it was not prepared
in anticipation of litigation and could not therefore be protected work product.
� Se. Mech. Servs., Inc., v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009). In this ongoing
computer fraud and abuse litigation, the plaintiff requested sanctions alleging the laptops and
BlackBerry smartphones belonging to the defendants were wiped of data. The defendants argued
that all evidence was preserved on the servers and that e-mails were produced in hard copy from
the servers. Relying on explanations provided by computer forensics experts that the "wiped" state
of the BlackBerry smartphones was attributed to intentional and deliberate actions, the court
disagreed with the defendants’ arguments and held that sanctions were appropriate. Given the
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