Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

appropriate because the plaintiffs failed to demonstrate severe prejudice and the defendant did not
act in bad faith.
� Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D.Fla. Mar. 4, 2009). In
this ongoing insurance dispute, the defendants sought production of electronically stored
information in native format with metadata and sanctions for alleged non-compliance with
Fed.R.Civ.P. 34 and a prior court order. Prior to this fifth discovery order, the plaintiffs produced the
requested evidence as TIFF images without metadata despite the defendants’ original production
request that explicitly sought native format with metadata. In May 2008, an attorney for the plaintiffs
concocted a false explanation for how the ESI was collected; however, days before a hearing,
plaintiffs’ counsel disclosed that the documents had been converted into TIFF images using a
program that selectively excluded metadata. After the defendants provided expert testimony
regarding the production, the plaintiffs’ counsel admitted metadata existed. Based on several more
examples of gamesmanship, the court found that if the plaintiffs (and their counsel) believed the
production format was substantially justified, they would not have concealed information and made
material misrepresentations. The court ordered the plaintiffs to bear all costs related to the
production of a copy of its database (excluding privileged information), which included purchasing
any necessary software and hiring professionals. Additionally, the court sanctioned a lead plaintiff
attorney, ordering him to pay reasonable attorneys’ fees, costs and expenses incurred by the
defendants and ordered another plaintiff attorney to show cause why he should not be personally
sanctioned. The law firm was also found responsible for the discovery misconduct and was "jointly
and severally liable" with the lead attorney to pay the defendants’ expenses.
� Cont’l Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL 425945 (S.D.Fla. Feb. 20, 2009). In this
litigation, the plaintiff filed a motion to compel production and discovery compliance. Noting the
parties were unable to cooperate regarding the imaging of the portable devices, the court provided
further direction. The court set out the following procedure: the plaintiff would image the
defendants’ portable electronic devices and the defendants would conduct a privilege search and
create a privilege log. The court advised that the plaintiff’s possession of any privileged information
did not constitute a waiver.
� Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 71678 (M.D.Fla. Jan. 8, 2009). In
this insurance litigation, the defendants objected to the special master’s recommendation that the
court deny a “blanket” finding of privilege or waiver and that any privileged documents produced in
response to a court order for expedited production would not constitute a waiver. The special
master determined the plaintiffs clearly established intent to protect privileged documents by taking
appropriate measures prior to the production. Additionally, the special master concluded the
opposition’s “first look” at potentially privileged documents was punishment enough for any
transgressions in the plaintiffs’ document management. Describing the order as a “narrow ruling,”
the court denied the defendants’ objection. The court reserved the right to consider the question of
waiver, if necessary, in response to an appropriate motion after the court determines if the plaintiffs
have established privilege.
� Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 5262707 (S.D.Fla. Dec. 17, 2008). In this
patent litigation, the defendants moved to compel production of consumer survey data relied upon
in expert reports. The defendants requested hard copy printouts including all metadata that was
previously produced in an allegedly “unusable” electronic .sav file format. The plaintiff opposed the
motion, asserting that it produced all of its experts’ survey data in the same format in which it was
reviewed and analyzed, and that such files can be easily accessed with any standard statistical
computer package. Finding the plaintiff’s production complied with Fed.R.Civ.P. 34(b)(2)(E)’s
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