Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

order, the teacher declared the production would violate his right against self-incrimination, his right
of privacy, and would disclose privileged communications. An administrative law judge ordered
production of the computers and sought to protect the teacher’s right by allowing the teacher to
have his own expert present at the inspection and by requiring the Board’s expert “not to retain,
provide, or discuss with counsel for the Board the existence of any communications which might be
deemed privileged.” In quashing the order, the court declared it was overbroad and would allow “an
agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the
computers [the teacher] has been ordered to produce, combing through every byte, every word,
every sentence, every data fragment, and every document, including those that are privileged or
that may be part of privileged communications, looking for ‘any data’ that may evidence
communication between [the teacher] and his accusers."
� Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct.
Mar. 1, 2005). In a suit alleging a fraudulent sale of stock, the plaintiff filed a motion for an adverse
inference instruction against the defendant for destroying e-mails and failing to comply with a court
order to compel e-mail discovery. Despite an SEC regulation requiring e-mail retention for two
years, the defendant continued its practice of overwriting e-mails every 12 months. Based on this,
the court ordered the defendant to produce backup tapes, review e-mails, conduct searches,
produce responsive e-mails and a privilege log, and certify compliance with the order. The
defendant issued the compliance certification in spite of having more than 1,400 backup tapes
containing data not yet processed or produced. Throughout the discovery process, the defendant
overwrote e-mails, failed to notify and timely process hundreds of DLT and 8mm tapes, and failed
to produce e-mails and attachments. The court found the plaintiff did not receive relevant e-mail
due to the defendant’s discovery tactics and granted the motion for an adverse inference
instruction noting “[t]he conclusion is inescapable that [the defendant] sought to thwart discovery.”
The court ordered the defendant to continue complying with the earlier discovery order and to pay
costs associated with the plaintiff’s motion. The court also noted the defendant “gave no thought to
using an outside contractor to expedite the process of completing the discovery, though it had
certified completion months earlier; it lacked the technological capacity to upload and search the
data at that time, and would not attain that capacity for months.” See also Coleman (Parent)
Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 674885 (Fla. Cir. Ct. Mar. 23, 2005);
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. CA 03-5045 AI (Fla. Cir. Ct.
Jun. 23, 2005)(awarding prejudgment interest of $207 million).
� Four Seasons Hotels and Resorts v. Consorcio Barr, 267 F. Supp. 2d 1268 (S.D.Fla. 2003),
aff’d in part and rev’d in part, 138 Fed.Appx. 297 (11th Cir. 2005). The plaintiff brought an action
against the defendant licensee alleging, among other things, violations of the Computer Fraud and
Abuse Act, Electronic Communications Privacy Act, and Uniform Trade Secrets Act. A computer
forensic investigation revealed that the defendant accessed the plaintiff’s computer network,
downloaded confidential data onto backup tapes, fabricated electronic evidence, and deleted files
and overwrote data prior to his computer being turned over for inspection to the plaintiff. The court
held that the defendant acquired the plaintiff’s confidential customer information through improper
means, namely, by theft and by espionage through electronic means. The court issued a judgment
for the plaintiff and ordered monetary damages, among other relief.
� Southern Diagnostic Assoc. v. Bencosme, 833 So.2d 801 (Fla. Dist. Ct. App. 2002). The
appellate court quashed an order against Southern Diagnostic, a non-party in an insurance suit
brought by Bencosme, compelling discovery of certain contents of its computer system. The
appellate court held that that trial court’s order was overly broad, setting no parameters or
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