Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

More documents

Recommendations

Info

equirement that data be produced in a reasonably accessible format, the court denied the defendants’ motion as the defendants provided no materials to demonstrate that their rebuttal experts were unable to access or review the data. � Klayman v. Freedom’s Watch, Inc., 2008 WL 5111293 (S.D.Fla. Dec. 4, 2008). In this litigation, the defendants moved the court to tax the costs of their electronic discovery collection to the plaintiff. The defendants requested the plaintiff pay the $150,000 they spent for expenses incurred in hiring an outside firm to collect their electronic documents, including travel expenses. Applying 28 USC §1920, which provides for the taxation of costs for “fees for exemplification and copies of papers necessarily obtained for use in the case,” the court denied the motion. The court refused to tax costs not specifically authorized by the statute, such as the hourly costs of collection at issue here. � Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D.Fla. Sept. 15, 2008). In this breach of contract litigation, the plaintiff sought production of documents that it alleged were relevant to prove its claim that the defendant violated its duty of good faith and fair dealing (the defendant was the surety for the party that previously entered into a contract with the plaintiff). The plaintiff requested: all documents and electronic documents that reflect all communications between the defendant and the third party; documents that reflect the defendant’s knowledge of the third party’s insolvency and inability to perform; and reproduction of documents in their native form that were previously produced in a TIFF format. The court denied the first request as overbroad, but granted the second request, finding the sought-after information to be relevant. Despite the plaintiff’s failure to specify a production format, the court determined the defendant did not comply with the Advisory Committee Note to Fed.R.Civ.P. 34 when it chose to produce TIFF images. The court ordered the defendant to reproduce documents in either their native format, another comparably searchable format or to supply the plaintiff with software for searching the TIFF images. � Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D.Fla. Aug. 29, 2008). In this trade secret litigation, the plaintiff filed a motion to compel production of relevant e-mail and sought sanctions for defendant’s untruthful representations regarding the e-mail account. The defendant argued he did not identify the particular Yahoo! account because he could not produce e-mails from it, claiming they were deleted as a result of his deactivation of the account. Frustrated by the defendant’s lack of evidence of destruction, the court ordered the defendant to immediately attempt to obtain and produce e-mails from the Yahoo! account. The court also awarded sanctions against the defendant, but stayed the determination of which sanctions to impose until a later date. � St. Cyr v. Flying J, Inc., 2008 WL 2097611 (M.D. Fla. May 16, 2008). In this negligence litigation, the plaintiff filed a motion to prevent the defendant from using the plaintiff’s work-product correspondences to his expert. Previously, the plaintiff’s expert furnished a four-page letter and an e-mail authored by the plaintiff’s counsel to the defendant in paper format. The defendant argued that this voluntary disclosure waived work-product protection, and also argued that Fed.R.Civ.P. 26(b)(5)(B) applies only within the context of electronically stored documents. The court disagreed, holding that Fed.R.Civ.P. 26(b)(5)(B) applies to both paper and electronic documents. However, the court held that Fed.R.Civ.P. 26(b)(5)(B) merely provides a procedure for addressing the issue of waiver and “the voluntary disclosure of a work product document into the hands of the adversary results in a waiver of the privilege.” � Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2007 WL 4336316 (Fla. Dec. 12, 2007). In this underlying fraud case, a jury originally awarded the plaintiff $1.58 billion due to the defendant’s willful destruction of e-mail and failure to comply with the court’s production order. 298
The award stemmed from the court’s jury instruction sanction which made the jury aware of the defendant’s attempt to “thwart” e-mail discovery. The defendant appealed and the state appellate court reversed the award in favor of the defendant based on the plaintiff’s failure to prove compensatory damages. The plaintiff appealed and the Florida Supreme Court denied the petition for review. See also Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings, Inc., 2007 WL 837221 (Fla. App. 4th Dist. Mar. 21, 2007); Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005). � U & I Corp. v. Advanced Med. Design, Inc., 2007 WL 4181900 (M.D.Fla. Nov. 26, 2007). In this breach of contract case, the defendant filed a second motion to compel and sought sanctions for insufficient compliance with the first motion to compel, claiming the plaintiff failed to produce numerous 2004 e-mail attachments, relevant correspondence and certain critical documents identified by Bates number. The plaintiff countered with a motion for a protective order, arguing that the request was unduly burdensome as the parties already exchanged over six thousand pages. The court was not persuaded by the plaintiff’s vague assertion and denied the motion for the protective order. The defendant also subpoenaed similar documents from a non-party who sought to squash the subpoena, claiming undue burden. The court was again not persuaded by the lack of detail provided as to the efforts required to comply and upheld the subpoena. Before ruling on the issue of sanctions, the court ordered the plaintiff to submit an affidavit from its corporate representative detailing the cause of the missing information and efforts undertaken to retrieve it. � Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 3171299 (M.D.Fla. Oct. 25, 2007). In this case, the defendant moved to impose sanctions for spoliation and discovery abuses against the plaintiff or in the alternative, to reopen discovery. The plaintiff claimed that an employee deleted relevant e-mail and therefore they could not produce e-mails responsive to the discovery requests. The employee claimed to have not received the litigation hold notice. The employee also claimed he deleted some e-mail in his inbox to clean it up but was unable to recall the subject matter of the deleted e-mails. The plaintiff then conducted a forensic search of the employee’s hard drive and produced responsive e-mails not earlier produced. The court therefore denied the motion as the defendant failed to establish two elements of a spoliation claim, 1) the deleted e-mail was relevant to the litigation and 2) that it had not been already produced. � In re Seroquel Prod. Liab. Litig., 2007 WL 2412946 (M.D.Fla. Aug. 21, 2007). In this multidistrict product liability litigation, the plaintiffs motioned the court to impose sanctions on the defendant for failing to timely comply with discovery obligations. The plaintiffs pointed to numerous instances where the defendant failed to produce documents in an accessible or useable format, in addition to missing numerous deadlines. While the court found two of those instances to be excusably negligent, the other behavior warranted sanctions. The court was extremely displeased with the defendant’s failure to discuss keyword search terms with the plaintiffs, failure to include page breaks between documents it did produce, failure to produce usable single-page tiff documents, omission of attachments and relevant emails, and purposeful sluggishness in making an effective production. The court stayed the determination of which sanctions to impose to allow the plaintiffs an opportunity to present evidence as to their damages or prejudice. � Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007). In this employment discrimination suit, the plaintiff sought production of e-mail from seven of the defendant’s employees. The plaintiff also submitted that the defendant implemented a new e-mail deletion policy where e-mails were deleted within 90 days of creation, unless designated for retention. Accordingly, the plaintiff sought permission from the court to take the deposition of the defendant’s IT representative to determine if the defendant had any of the requested e-mail and if the defendant destroyed any relevant 299
Page 1 and 2:
Electronic Discovery and Computer F
Page 3 and 4:
Florida ...........................
Page 5 and 6:
protocol. The search protocol allow
Page 7 and 8:
Finally, the court expressed disple
Page 9 and 10:
should rely on IT professionals to
Page 11 and 12:
to compel, the plaintiff sought pro
Page 13 and 14:
had been withheld, and if e-mails w
Page 15 and 16:
the defendants continued to destroy
Page 17 and 18:
ordering recovery and production of
Page 19 and 20:
evidence supporting this contention
Page 21 and 22:
ehavior as a direct contradiction o
Page 23 and 24:
the effort required to conduct a pr
Page 25 and 26:
defendant’s motion to dismiss was
Page 27 and 28:
under Rule 803(6) of the Federal Ru
Page 29 and 30:
pay judgment in favor of the plaint
Page 31 and 32:
equally all costs associated with h
Page 33 and 34:
subpoena would not “prejudice the
Page 35 and 36:
stopped the automatic deletion of e
Page 37 and 38:
far produced refuted an inference o
Page 39 and 40:
commentary that “privacy is no lo
Page 41 and 42:
documents since resorting to the Ha
Page 43 and 44:
� Arista Records LLC v. Usenet.co
Page 45 and 46:
expense of production. The court he
Page 47 and 48:
substantive. Rejecting the SEC’s
Page 49 and 50:
claimed these requests raised user
Page 51 and 52:
efused to issue adverse jury instru
Page 53 and 54:
evidence would have been favorable
Page 55 and 56:
failed to issue a proper litigation
Page 57 and 58:
tapes were meant only for disaster
Page 59 and 60:
cost and time considerations requir
Page 61 and 62:
defendant’s investment officer wa
Page 63 and 64:
Aug. 22, 2003). Stating the order w
Page 65 and 66:
which the court issued severe sanct
Page 67 and 68:
ordered a computer forensics examin
Page 69 and 70:
evidence, and/or failed to make rea
Page 71 and 72:
information from its computer netwo
Page 73 and 74:
production was incomplete, and move
Page 75 and 76:
falsely claimed to have been raped
Page 77 and 78:
� State v. Voorheis, 2004 WL 2581
Page 79 and 80:
sanctions were disproportionate and
Page 81 and 82:
the defendants were responsible for
Page 83 and 84:
was not equitable to force the defe
Page 85 and 86:
choose not to heed the court’s or
Page 87 and 88:
magistrate judge improperly minimiz
Page 89 and 90:
appropriate. The court refused to m
Page 91 and 92:
plaintiffs waived any privilege cla
Page 93 and 94:
defendants failed to preserve and d
Page 95 and 96:
portions of the plaintiff’s Faceb
Page 97 and 98:
court denied sanctions, but issued
Page 99 and 100:
equire the non-party to allow the p
Page 101 and 102:
server. The court also granted the
Page 103 and 104:
preserve the computer’s memory .
Page 105 and 106:
� Itzenson v. Hartford Life and A
Page 107 and 108:
� Eckhardt v. Bank of America, 20
Page 109 and 110:
� Bank of Amer. Corp. v. SR Int
Page 111 and 112:
� Morris v. Metals USA, 2011 WL 9
Page 113 and 114:
did not address the employer’s ab
Page 115 and 116:
� Mezu v. Morgan State Univ., 201
Page 117 and 118:
any such information was irrelevant
Page 119 and 120:
plaintiff’s motion for sanctions
Page 121 and 122:
at Dulles airport, the defendants f
Page 123 and 124:
documents in a manner that was resp
Page 125 and 126:
“destroyed some documents because
Page 127 and 128:
“would be even more reliable than
Page 129 and 130:
defendant’s withholding of respon
Page 131 and 132:
when it was reasonably anticipated.
Page 133 and 134:
Mississippi � PIC Grp., Inc. v. L
Page 135 and 136:
he allegedly sent to the victim. Th
Page 137 and 138:
absent a motion to compel. The cour
Page 139 and 140:
disclosure of the hard drive to the
Page 141 and 142:
to all payment histories of account
Page 143 and 144:
aware that a party in litigation mu
Page 145 and 146:
not clear enough to warrant enforce
Page 147 and 148:
ecause the computer expert testifie
Page 149 and 150:
database contained proprietary info
Page 151 and 152:
should have provided the substance
Page 153 and 154:
protective relief (including cost s
Page 155 and 156:
drive from a vital computer in the
Page 157 and 158:
preserve ‘every shred of paper, e
Page 159 and 160:
defendant plainly manifested an exp
Page 161 and 162:
argued that it previously produced
Page 163 and 164:
� United States v. Premera Blue C
Page 165 and 166:
overwritten] well before th[is] law
Page 167 and 168:
documents for use in her wrongful d
Page 169 and 170:
devices that contain relevant elect
Page 171 and 172:
asserting that the Federal Rules of
Page 173 and 174:
excuse” for the obvious discovery
Page 175 and 176:
defendants were not entitled to rec
Page 177 and 178:
� Whitlow v. Martin, 2009 WL 3338
Page 179 and 180:
documents belonging to the plaintif
Page 181 and 182:
the filing of the claim, its failur
Page 183 and 184:
confidential customer lists, quotat
Page 185 and 186:
defendants at a cost of more than $
Page 187 and 188:
expert. The court also held that an
Page 189 and 190:
electronic discovery of the defenda
Page 191 and 192:
within the plaintiff’s control an
Page 193 and 194:
� Perfect Barrier LLC v. Woodsmar
Page 195 and 196:
citing the defendants’ considerab
Page 197 and 198:
� Kasten v. Doral Dental USA, LLC
Page 199 and 200:
destruction of evidence indicating
Page 201 and 202:
incident, her attorney’s letter c
Page 203 and 204:
question to this court to determine
Page 205 and 206:
� State v. Levie, 695 N.W.2d 619
Page 207 and 208:
instruction because the plaintiff i
Page 209 and 210:
plaintiffs’ alleged failure to me
Page 211 and 212:
including those from their homes. A
Page 213 and 214:
litigation was pending, he had not
Page 215 and 216:
the illegal images onto his compute
Page 217 and 218:
portions of the e-mail were not pro
Page 219 and 220:
the resources to oppose the subpoen
Page 221 and 222:
drive in temporary internet file fo
Page 223 and 224:
"wireless sniffers" to intercept ap
Page 225 and 226:
communications sent over her work c
Page 227 and 228:
court also determined the attorneys
Page 229 and 230:
� Keithley v. Homestore.com, Inc.
Page 231 and 232:
destroyed relevant electronic docum
Page 233 and 234:
personal sanctions due to an absenc
Page 235 and 236:
Qualcomm, Inc. v. Broadcom Corp., 2
Page 237 and 238:
liable for the destruction of the h
Page 239 and 240:
investigation where the defendant r
Page 241 and 242:
motion was denied by the trial cour
Page 243 and 244:
documents with titles indicating th
Page 245 and 246:
defendants had received requests to
Page 247 and 248: the backup tape data and to bear pr
Page 249 and 250: documents included an inaccurate bi
Page 251 and 252: � Playboy Enters., Inc. v. Welles
Page 253 and 254: � Peschel v. City of Missoula, 20
Page 255 and 256: spoliation. Through forensic analys
Page 257 and 258: Phoenix and determined that an elec
Page 259 and 260: the defendant was in possession, cu
Page 261 and 262: Nevertheless, the defendants believ
Page 263 and 264: one violation of the second order,
Page 265 and 266: delays and financial harm. In suppo
Page 267 and 268: plaintiff produced a mere ten e-mai
Page 269 and 270: defendant’s employees continuousl
Page 271 and 272: the e-mails and attachments to be r
Page 273 and 274: elating to any ex parte communicati
Page 275 and 276: “unadulterated fishing expedition
Page 277 and 278: e-mails establishing the documents
Page 279 and 280: metadata, the parties agree that th
Page 281 and 282: expense in restoring and searching
Page 283 and 284: and create a more organized and und
Page 285 and 286: � Phillip M. Adams & Assoc., LLC
Page 287 and 288: � ClearOne Communications, Inc. v
Page 289 and 290: � Wright v. AmSouth Bancorp, 320
Page 291 and 292: metadata or searchable text. Follow
Page 293 and 294: � In re Fontainebleau Las Vegas C
Page 295 and 296: nature of the destroyed evidence, i
Page 297: appropriate because the plaintiffs
Page 301 and 302: were also overwritten per departmen
Page 303 and 304: order, the teacher declared the pro
Page 305 and 306: investigation of the plaintiff’s
Page 307 and 308: Regarding the defendants’ relevan
Page 309 and 310: � ABC Home Health Servs. v. IBM C
Page 311 and 312: document preservation order. The re
Page 313: search,” the court ordered the De
show all

Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?