Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Feig v. Apple Org., Inc., 2009 WL 1515506 (S.D.Fla. May 29, 2009). In this wrongful termination
litigation, the plaintiff sought production of the defendant’s communications, including e-mails to
and from the plaintiff. The defendant claimed that production of employee e-mails referencing the
plaintiff was burdensome and would produce irrelevant documents. The defendant also argued that
its server was shut down when it went out of business and that if the employee e-mail accounts
were recreated, they would be impossible to search by keyword. Rejecting the defendant’s
irrelevancy argument, the court found that e-mails sent by the plaintiff’s co-workers could be
reasonably calculated to lead to admissible evidence. Thus, the court ordered an electronic search
of the defendant’s server data. The court noted that if a keyword search proved impossible, the
defendant could seek a protective order provided it had support from a computer forensic expert.
� Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 117312 (S.D.Fla. Apr. 24, 2009).
In this RICO action, the plaintiff sought a production response from the defendants after a previous
motion to compel proved fruitless. The plaintiff also requested sanctions in the form of direct
access to the defendants’ computer hardware and electronic information. Finding the defendants
failed to present a sufficient reason for the discovery inadequacies, the court determined an
independent computer expert should be appointed to retrieve deleted responsive files from the
defendants’ computers. The court ordered the plaintiff to submit search terms and bear the expert’s
costs unless future evidence of discovery misconduct necessitated cost allocation to the
defendants, but awarded attorneys’ fees to the plaintiff. The court also afforded the defendants the
right to review the search terms and determine privilege and responsiveness.
� Cont’l Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL 1098461 (S.D.Fla. Apr. 22, 2009). In this
Computer Fraud and Abuse Act litigation, the plaintiff claimed a former employee downloaded
proprietary information prior to leaving the company. Among the plaintiff’s numerous motions was
its request for an adverse inference sanction. The plaintiff alleged that the computer files were
taken with the intention to use the information in the former employee’s new employment, they
were accessed after notice of litigation and the related metadata was destroyed. Finding the
plaintiff failed to demonstrate bad faith on the part of the former employee, the court denied the
adverse inference request noting the conduct did not rise to the requisite level for a finding of
evidence spoliation.
� Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982460 (S.D.Fla. Apr. 9,
2009). In this litigation alleging a confidentiality agreement breach, the plaintiffs sought sanctions
based on the defendant’s "document dump" of 10,000 documents two months after the close of
discovery and deletion of documents pursuant to a "print and purge" directive from defense
counsel. Finding the defendant clearly failed to carry out its discovery obligations by acting in a
grossly negligent manner, the court imposed sanctions. First, the court ordered further depositions
regarding several categories of documents at cost to the defendant. The court then ordered
additional limited discovery in relation to several document categories. According to the court,
these sanctions were intended to compensate the plaintiffs as well as to punish and deter any
further breaches of discovery obligations. The court also determined the defendant’s counsel’s
decision to print and purge electronic documents without consulting opposing counsel or the court
was an exercise in bad judgment constituting a breach of the defendant’s duty to preserve.
Accordingly, the court ordered that the plaintiffs shall be permitted to conduct a forensic
examination of the defendant’s electronic data backup system to verify all e-mails were produced.
In addition, the court ordered that the plaintiffs shall be permitted to conduct a forensic examination
to ensure the reduction of the 60,000 data set to 35 documents (produced in a supplemental
production) was appropriate. Finally, the court determined default judgment sanctions were not
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