Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

provided in discovery," and further rejected the challenge to the documents’ veracity as meritless,
finding the discrepancy in authorship was accounted for by the bidding review process.
� United Med. Supply Co. Inc., v. United States, 2007 WL 1952680 (Fed.Cl. June 27, 2007). In
this contract dispute, the plaintiff sought spoliation sanctions based on the defendant’s failure to
preserve and produce relevant evidence. The defendant argued that as it acted in good faith, albeit
negligently, the court was precluded from imposing such sanctions. For over four years, the
defendant had neglected to contact the proper custodians to notify them of the litigation, let alone
inform them of the preservation requirement. The court held that an injured party need not
demonstrate bad faith in order for the court to impose spoliation sanctions, as the spoliation
doctrine was not designed solely to punish those who consciously destroy documents, but also to
address the manifest unfairness in the loss of relevant information. Therefore, based on the
defendant’s reckless disregard of its preservation duty, the court ordered a two facet sanction.
First, the defendant was prohibited from cross-examining the plaintiff’s expert regarding gaps in the
record. Second, the defendant was ordered to reimburse the plaintiff for any additional discovery
related costs because of the defendant’s malfeasance and misrepresentations as well as costs
incurred with this motion.
� AAB Joint Venture v. United States, 2007 WL 646157 (Fed. Cl. Feb. 28, 2007). In this
construction litigation case, the plaintiff moved to compel discovery of e-mails from the defendant.
The defendant listed several individuals who were known to have generated e-mail related to the
subject matter of the litigation. However, the defendant produced e-mail from only a few of the
individuals, and the production from those individuals revealed insufficiency and gaps in the
production. The defendant argued that it produced thousands of e-mails already and that further
production required restoration of back-up tapes that would cost between $85,000 and $150,000.
The defendant further argued that many of the e-mails were protected as privileged
communications. The plaintiff argued the defendant had a duty to preserve e-mail and costs should
not have any bearing on whether the documents should be produced. The court agreed with the
plaintiff and ruled that the defendant’s production of e-mails was far from adequate. The court
further ruled that cost is only one factor in ordering a motion to compel and that the court “cannot
relieve Defendant of its duty to produce those documents merely because Defendant has chosen a
means to preserve the evidence which makes ultimate production of relevant documents
expensive.” As such, the defendant was ordered to restore a portion of its back-up tapes from time
periods specified by the plaintiff and was ordered to bear the costs of the initial sampling. Any
further production and cost allocation would be determined by the sample production.
� United Medical Supply Co. v. United States, 73 Fed.Cl. 35 (Fed. Cl. 2006). The Federal Claims
Court reviewed a motion requesting an order commanding a government entity to preserve
documents. The plaintiff claimed an order was necessary to preserve documents since evidence
revealed that the government allowed several boxes of relevant documents stored in warehouses
to be destroyed. The court noted that it need not issue a preservation order to prevent spoliation
since most parties understand the obligation to preserve relevant evidence. However, the court
found that the risk of future document destruction was high and steps to prevent the possible
destruction would not be overly broad or burdensome on the government, therefore, granting the
preservation order. Although the destruction of documents involved paper documents stored in a
warehouse, the court extended the preservation order to include all electronic documents, including
computer hard drives and servers.
� The Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (Fed. Cl. 2004). The plaintiff, who
alleged that the government mismanaged Indian tribe trust funds and other properties, moved for a
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