Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

nature of the destroyed evidence, including personal e-mails, telephone records, text messages
and calendar entries, the court determined the evidence was likely unfavorable to the defendants
and therefore issued an adverse inference instruction.
� Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009).
In this ongoing insurance litigation, the defendants sought dismissal sanctions or preclusion of
evidence pertaining to a key business interruption loss claim. The defendants argued the plaintiffs’
violation of three court orders to compel production, misrepresentations that discovery was
complete and production of 188 pages of key documents after the close of discovery warranted
sanctions. In opposition, the plaintiffs argued they had no reason to know the production was
incomplete. Finding that none of the court’s previous efforts were effective to defer the plaintiffs
from "continuing their pattern of stubborn defiance," the magistrate judge determined severe
sanctions were warranted. In cataloging the plaintiffs’ discovery failures, the magistrate judge noted
that "no reasonable person could conclude" the plaintiffs’ failure to timely produce documents was
justified and that the plaintiffs’ conduct was intended to deceive and prevent discovery. The
magistrate judge also discussed the attorneys’ role in the discovery misconduct, noting lawyers
owe a duty of candor to the court and a duty to deal honestly and fairly with opposing counsel.
Accordingly, the magistrate judge granted the motion for preclusion sanctions and determined the
plaintiffs and counsel were jointly and severally responsible for the defendants’ expenses and
costs.
� Se. Mech. Servs., Inc., v. Brody, 2009 WL 2242395 (M.D. Fla. July 24, 2009). In this computer
fraud and abuse litigation, the defendants sought adverse inference and preclusion sanctions
striking allegations in the plaintiff’s complaint and barring plaintiff testimony regarding alleged
spoliation by the defendants for the plaintiff’s failure to issue a litigation hold and subsequent
destruction of data. The defendants contended the only evidence related to the plaintiff’s claim that
the defendants improperly deleted data was lost because the plaintiff did not put a litigation hold
into place to halt the automatic overwriting of its backup tapes. The plaintiff argued sanctions were
inappropriate because the defendants’ request came too late to preserve the relevant data from
automatic overwriting and its failure to implement a litigation hold was not in bad faith. The court
found that the plaintiff had a duty to preserve evidence and should have initiated a litigation hold
that would suspend the routine overwriting of its backup tapes at the time it sent the defendants a
demand letter. Despite the finding of spoliation, the court denied the defendants’ motion to impose
sanctions against the plaintiff because it found the plaintiff did not act in bad faith and the
defendants failed to show that any "crucial evidence" existed on the destroyed backup tapes.
� Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009). In this medical tort action,
the plaintiff moved to compel discovery, asserting that recently discovered e-mails and purported
irregularities in the defendant’s production warranted additional discovery. The defendant argued
that any additional e-mails were in backup storage and not reasonably accessible. While the court
recognized that there may be responsive documents that had not been produced, it questioned the
relevance of the potential evidence and noted that the “eleventh hour” timing of the request – two
weeks before trial – made it impossible to complete the searches before the start of trial and might
interfere with the defendant’s trial preparations. Accordingly, the court granted the plaintiff limited
discovery, holding the plaintiff may hire an outside vendor at its own expense to search at most five
of the defendant’s backup tapes; the search would contain a limited number of search terms; the
search would include the e-mail records of seven key employees; and the results would be subject
to a confidentiality agreement.
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