Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

stopped the automatic deletion of emails. Upon this revelation, the plaintiff moved for spoliation
sanctions. Citing Zubulake, the state trial court granted the motion and held that the defendant
should have reasonably anticipated litigation and preserved potentially relevant ESI no later than
June 20, 2007—the date of its own notice of breach letter—and ceased the automatic deletion of
its emails. Giving credence to the lower court’s adoption of the Zubulake standard, the Appellate
Division upheld sanctions for the defendant’s “grossly negligent” spoliation of ESI. The court noted
that the spoliation was especially negligent given that the defendant was put on notice of its
substandard ESI retention practices in a recent, similar lawsuit.
� Pippins v. KPMG LLP, 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011). In this action involving the Fair
Labor Standards Act and New York State Labor Law, the defendant sought a protective order
seeking to limit the scope of its preservation obligations, claiming it should not be responsible for
preserving computer hard drives of thousands of former and departing employees. Instead, the
defendant requested an order requiring it to only preserve a random sample of 100 hard drives that
have already been preserved, or alternatively, that the plaintiffs be required to bear the
preservation costs. Noting that relevancy determinations are difficult to make based on the
defendant’s “own efforts to keep that information at bay,” the court determined that each and every
former and departing employee is a “key player” at this time. The court also cited that courts in its
district have “cautioned against the application of a proportionality test as it relates to preservation”
and found that permitting the destruction of hard drives at this early stage of litigation was
inappropriate. Further, the court noted the ongoing burden is largely self-inflicted by the defendant
due to its continued reluctance to work with the plaintiffs to generate a reasonable sample of the
hard drives. Based on this analysis, the court denied the protective order and cost-shifting. Until a
further order or agreement is reached, the court ordered the defendant to preserve the existing
hard drives of all former and departing employees who are potential class members.
� Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 2011 WL 3738979 (S.D.N.Y. Aug.
18, 2011). In this discovery dispute, the defendants requested production of non-privileged and
responsive "missing" e-mail attachments. Objecting, the plaintiffs contended the requested
attachments were unresponsive and cited their reasonably diligent effort to produce 1.5 million
documents in a matter of weeks. Weighing both parties positions, the special master determined it
would be unfair to require the defendants to identify all the e-mails that were missing attachments,
and recommended the plaintiffs be required to produce attachments to the 126 e-mails already
identified by the defendants. Following that production, the defendants could move for further
production of e-mail attachments. Finally, the special master also recommended the parties meet
and confer to address items related to the production.
� Neverson-Young v. Blackrock, Inc., 2011 WL 3585961 (S.D.N.Y. Aug. 11, 2011). In this
employment litigation, the defendants sought sanctions alleging the plaintiff failed to produce
relevant information and further spoliated evidence by donating her personal computer to an
overseas school after commencing the action. Finding the plaintiff’s actions constituted negligence,
the court determined the plaintiff did not act in bad faith. Instead, the court determined that unlike
corporate actors, the plaintiff in this case was unsophisticated and unaccustomed to preservation
requirements. Further, the court noted the belatedly produced e-mails were withheld under good
faith misconceptions of relevance and privilege, and held it is not standard practice for litigants to
preserve their own telephone records in anticipation of litigation. Finding no evidence of prejudice
or bad faith, the court declined to impose sanctions, but awarded reasonable fees and costs
incurred by the defendants through searching the plaintiff’s hard drive and obtaining her e-mail
records.
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