Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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� Edelen v. Campbell Soup Co., 2010 WL 774186 (N.D.Ga. Mar. 2, 2010). In this race and gender discrimination litigation, the plaintiff filed several objections to a magistrate judge’s discovery order which denied the plaintiff’s motion for sanctions and directed the plaintiff pay the defendants attorneys’ fees associated with the defendants’ previous motion to narrow the scope of ESI discovery requests. The plaintiff argued for sanctions alleging the defendants excessively designated documents as confidential, voluntarily produced privileged documents and failed to meet and confer with the plaintiff. Regarding the plaintiff’s ESI discovery request, the defendants claimed the plaintiff’s proposal spanned a three year period and would produce 474,456 documents for one year alone since it encompassed 50 custodians and more than 55 search terms. Adopting the magistrate’s discovery recommendations in full, the court dismissed the plaintiff’s sanctions claims and noted the plaintiff repeatedly failed to comply with court’s orders to narrow the scope of the ESI production requests. Thus, the court found the magistrate’s recommendation, which awarded attorneys’ fees based on the plaintiff’s noncompliant behavior in the discovery process, to be reasonable. � CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009). In this patent infringement action, the defendants filed a motion to tax the costs associated with using an e-discovery vendor to aid in the production of 1.4 million electronic documents and six versions of source code. Objecting, the plaintiff argued that fees associated with the collection of documents for production are not taxable under 28 U.S.C. § 1920. Although noting that a judicial division of opinion exists as to whether U.S.C § 1920 allows recovery, the court cited the highly technical nature and necessity of e-discovery services in the electronic age to overrule the plaintiff’s objection and hold the $268,311.22 in costs to be recoverable. In supporting its finding, the court reasoned that the "[t]axation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery." � Kipperman v. Onex Corp., 2009 WL 1473708 (N.D.Ga. May 27, 2009). In this constructive transfer and fraud case, the plaintiff sought sanctions in the form of a default judgment against the defendant for discovery abuses. The plaintiff asserted that the defendant repeatedly defied court orders, unilaterally narrowed the scope of restoration and production of court-ordered backup tapes, unilaterally redacted court-ordered produced documents to the point that such documents became unusable and misrepresented to the court the likely relevance of e-mails sought. The defendants maintained that their redactions were in compliance with the court’s orders and insisted that the broad discovery requested by the plaintiff would likely be fruitless. The court agreed with the plaintiffs that the defendant had blatantly disregarded court orders by making misrepresentations during discovery and stated it was deeply disturbed by the defendant’s discovery conduct in what it regarded as "a textbook case of discovery abuse." However, the court declined to order default sanctions, citing novel issues of liability and noting that granting a default judgment in this case might be a grant of the largest default judgment sought in United States history. The court alternatively awarded $1,022,700 in monetary sanctions against the defendant to be paid to the plaintiff. � Kipperman v. Onex Corp., 2008 WL 4372005 (N.D.Ga. Sept. 19, 2008). In this litigation, the defendants sought relief from having to review and produce all results from an e-mail search on the defendants’ backup tapes, arguing that the broad search terms resulted in thousands of irrelevant hits. The defendant asked to be excused from producing (1) irrelevant documents, (2) documents responsive to one specific transaction, and (3) documents captured from the e-mail boxes of one specific subsidiary company. Finding the documents referred to in the second and third objections were “highly unlikely” to garner relevant information, the court granted the requested relief. 306
Regarding the defendants’ relevancy and volume objections, the court noted the defendants previously had the opportunity to narrow the search terms and provide a list of people that could help reduce the number of e-mail boxes searched, which they did not take advantage of. The court therefore refused relief stating, “Defendants must now lie in the bed that they have made.” � Connor v. Sun Trust Bank, 2008 WL 623027 (N.D.Ga. Mar. 5, 2008). In this litigation alleging interference and retaliation claims under FMLA, the plaintiff filed a motion for sanctions based on the defendant’s failure to produce a highly relevant e-mail during discovery. The plaintiff located, through other means, a relevant e-mail that explained her dismissal to other employees. The defendant moved for summary judgment relying on their 30-day e-mail destruction policy which automatically deleted e-mails that were thirty days old, unless they were first archived by the user. The court, un-persuaded by the defendant’s reasoning, granted the plaintiff’s motion for sanctions and issued an adverse jury instruction. � Arista Records LLC v. Does 1-7, 2008 WL 542709 (M.D.Ga. Feb. 25, 2008). In this copyright infringement suit, the plaintiffs filed a motion seeking expedited discovery to obtain basic information about the alleged infringers from the third-party Internet Service Provider. The plaintiffs sought the name, current and permanent address, phone number, e-mail address and Media Access Control address for the individuals linked to the Internet Protocol addresses involved in the alleged distribution of the copyrighted materials over the peer-to-peer file sharing network at issue. The court granted the motion based on good cause established by the lack of other means to obtain the information and the prima facia showing of copyright infringement, combined with the expediency created by the limited retention of user activity logs. � Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D.Ga. Feb. 25, 2008). In this employment discrimination suit alleging company-wide sexual harassment, the plaintiffs filed a renewed motion to compel the defendants to produce documents, including e-mails, that were sexual or of a gender derogatory nature from 1998 through 2006. The defendants claimed the email was not reasonably accessible due to undue burden and cost as it required the restoration of numerous backup tapes and claimed fees of $79,300 for e-mail restoration from a single employee over a two year period. Agreeing with the defendants, the court found the burden of the request to outweigh the likely benefit and limited the retrieval to two narrow categories of e-mail: (1) undeleted e-mail of current employees specifically named by the plaintiffs; and (2) any relevant e-mails of the nature cited by the plaintiff of which the defendants were aware of and had retained. Additionally, the court denied the plaintiffs’ request for spoliation sanctions, finding the defendants’ document destruction policy reasonable. � Barton v. State, 2007 WL 1775565 (Ga.App. June 21, 2007). In a suit charging the defendant of knowingly possessing child pornography, the Georgia Court of Appeals reversed the jury trial conviction based in large part on computer forensic evidence. A computer forensic analyst testified that computers store information viewed over the internet on the hard drive in temporary internet cache files and that there is nothing the user can do to prevent this. The computer forensic expert further explained that there is no way to determine if the stored files were affirmatively sought after by the user or were pop-ups. Additionally, a user is not able to retrieve these files without special forensic software, which was not present on the defendant’s computer. As knowing possession of child pornography requires proof of an affirmative step to save or download images to the computer and knowledge of their existence, the defendant did not have the required culpability to be held guilty of the crime. � Williams v. Taser Int’l Inc., 2007 WL 1630875 (N.D.Ga. June 4, 2007). In a wrongful death action, the plaintiffs brought three motions before the court to resolve numerous discovery disputes. The 307
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Electronic Discovery and Computer F
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Florida ...........................
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protocol. The search protocol allow
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Finally, the court expressed disple
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should rely on IT professionals to
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to compel, the plaintiff sought pro
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had been withheld, and if e-mails w
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the defendants continued to destroy
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ordering recovery and production of
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evidence supporting this contention
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ehavior as a direct contradiction o
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the effort required to conduct a pr
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defendant’s motion to dismiss was
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under Rule 803(6) of the Federal Ru
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pay judgment in favor of the plaint
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equally all costs associated with h
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subpoena would not “prejudice the
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stopped the automatic deletion of e
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far produced refuted an inference o
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commentary that “privacy is no lo
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documents since resorting to the Ha
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� Arista Records LLC v. Usenet.co
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expense of production. The court he
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substantive. Rejecting the SEC’s
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claimed these requests raised user
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efused to issue adverse jury instru
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evidence would have been favorable
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failed to issue a proper litigation
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tapes were meant only for disaster
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cost and time considerations requir
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defendant’s investment officer wa
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Aug. 22, 2003). Stating the order w
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which the court issued severe sanct
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ordered a computer forensics examin
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evidence, and/or failed to make rea
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information from its computer netwo
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production was incomplete, and move
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falsely claimed to have been raped
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� State v. Voorheis, 2004 WL 2581
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sanctions were disproportionate and
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the defendants were responsible for
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was not equitable to force the defe
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choose not to heed the court’s or
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magistrate judge improperly minimiz
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appropriate. The court refused to m
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plaintiffs waived any privilege cla
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defendants failed to preserve and d
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portions of the plaintiff’s Faceb
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court denied sanctions, but issued
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equire the non-party to allow the p
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server. The court also granted the
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preserve the computer’s memory .
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� Itzenson v. Hartford Life and A
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� Eckhardt v. Bank of America, 20
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� Bank of Amer. Corp. v. SR Int
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� Morris v. Metals USA, 2011 WL 9
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did not address the employer’s ab
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� Mezu v. Morgan State Univ., 201
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any such information was irrelevant
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plaintiff’s motion for sanctions
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at Dulles airport, the defendants f
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documents in a manner that was resp
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“destroyed some documents because
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“would be even more reliable than
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defendant’s withholding of respon
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when it was reasonably anticipated.
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Mississippi � PIC Grp., Inc. v. L
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he allegedly sent to the victim. Th
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absent a motion to compel. The cour
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disclosure of the hard drive to the
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to all payment histories of account
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aware that a party in litigation mu
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not clear enough to warrant enforce
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ecause the computer expert testifie
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database contained proprietary info
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should have provided the substance
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protective relief (including cost s
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drive from a vital computer in the
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preserve ‘every shred of paper, e
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defendant plainly manifested an exp
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argued that it previously produced
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� United States v. Premera Blue C
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overwritten] well before th[is] law
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documents for use in her wrongful d
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devices that contain relevant elect
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asserting that the Federal Rules of
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excuse” for the obvious discovery
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defendants were not entitled to rec
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� Whitlow v. Martin, 2009 WL 3338
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documents belonging to the plaintif
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the filing of the claim, its failur
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confidential customer lists, quotat
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defendants at a cost of more than $
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expert. The court also held that an
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electronic discovery of the defenda
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within the plaintiff’s control an
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� Perfect Barrier LLC v. Woodsmar
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citing the defendants’ considerab
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� Kasten v. Doral Dental USA, LLC
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destruction of evidence indicating
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incident, her attorney’s letter c
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question to this court to determine
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� State v. Levie, 695 N.W.2d 619
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instruction because the plaintiff i
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plaintiffs’ alleged failure to me
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including those from their homes. A
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litigation was pending, he had not
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the illegal images onto his compute
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portions of the e-mail were not pro
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the resources to oppose the subpoen
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drive in temporary internet file fo
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"wireless sniffers" to intercept ap
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communications sent over her work c
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court also determined the attorneys
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� Keithley v. Homestore.com, Inc.
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destroyed relevant electronic docum
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personal sanctions due to an absenc
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Qualcomm, Inc. v. Broadcom Corp., 2
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liable for the destruction of the h
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investigation where the defendant r
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motion was denied by the trial cour
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documents with titles indicating th
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defendants had received requests to
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the backup tape data and to bear pr
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documents included an inaccurate bi
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� Playboy Enters., Inc. v. Welles
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� Peschel v. City of Missoula, 20
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Page 285 and 286: � Phillip M. Adams & Assoc., LLC
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Page 289 and 290: � Wright v. AmSouth Bancorp, 320
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Page 293 and 294: � In re Fontainebleau Las Vegas C
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Page 309 and 310: � ABC Home Health Servs. v. IBM C
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Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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