Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Hambarian v. C.I.R., 118 T.C. 35 (U.S. Tax Ct. June 13, 2002). For use in connection with a
criminal tax proceeding, the defendants’ attorney created searchable, electronic databases
containing documents turned over by the Prosecutor during discovery. The Respondent, in the civil
tax proceeding at bar, sought a motion to compel discovery of these electronic document
databases from the Petitioners/defendants. The court stated that “As the Petitioner failed to make
the requisite showing of how the disclosure of the documents selected would reveal the defense
attorney’s mental impressions of the case, the requested documents and computerized electronic
media are not protected by the work product doctrine.”
Virgin Islands
� Richards v. Legislature of the Virgin Islands, 2009 WL 174959 (D.Virgin Islands Jan. 9, 2009).
In this tort and civil rights litigation, the defendants sought the return of privileged information
inadvertently produced. The plaintiffs argued the attorney-client privilege was waived when the
documents were produced. Agreeing with the plaintiff, the court denied the motion as the
defendants did not review the documents prior to production.
� Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008). In this slip and fall case, the
plaintiff appealed the trial court’s grant of summary judgment in favor of the defendant. The trial
court held that the plaintiff failed to provide any evidence that the defendant had constructive
knowledge of the liquid spill which allegedly caused the plaintiff to fall. The plaintiff argued she was
entitled to a spoliation inference based on the defendant store manager’s decision to preserve the
digital surveillance video of the actual fall but not the footage immediately prior to or subsequent to
the fall. The defendant countered that the plaintiff was not entitled to a spoliation inference because
the evidentiary destruction was a matter of routine practice and was devoid of fraudulent intent.
After noting the store manager’s, “conscious and intentional choice not to review or retain the
recorded footage,” the court determined that the defendant “both intentionally and fraudulently
destroyed relevant evidence.” The court also stated that the manager’s failure to retain the footage
“shocks the conscience of the court and creates a presumption of fraud.” Accordingly, the court
granted a spoliation inference against the defendant for the purpose of summary judgment, but
noted that whether a jury would actually draw a spoliation inference was a matter left for trial and
remanded the case.
Other Countries
England
� Digicel v. Cable & Wireless PLC, [2008] EWHC 2522 (CH) (23 October 2008). In this breach of
statutory duty litigation, the Claimants (plaintiffs) applied (moved) for restoration of back-up tapes
and the use of additional search terms. Previously, the law of the multiple jurisdictions in which the
Claimants and Defendants conducted business changed to increase competition by statutorily
requiring surrender of Defendant’s exclusive telecommunication licenses, giving rise to the
Claimants allegation of deliberate delay and damages. During initial disclosures, the Defendants
unilaterally declined to restore or search back-up tapes and chose 10 search terms with 6 similar
stem words, for which it was criticized by the Claimants. Balancing Paragraph 2A of Part 31
Practice Decision calling for early discussion of issues with Rule 31.7 requiring a “reasonable
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