Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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� Mikhlyn v. Bove, 2011 WL 4529619 (E.D.N.Y. Aug. 3, 2011). In this trademark infringement and unfair competition litigation, the defendants responded to the magistrate judge’s sanctions recommendation claiming their formal counsel alone is responsible for discovery misconduct. Although the magistrate judge previously found that the defendants’ misconduct was not egregious enough to warrant the plaintiffs’ original request for default judgment, he recommended reopening discovery to determine whether plaintiffs allegations of unproduced e-communications were true. Following this, newly discovered evidence revealed that tens of thousands of e-mails, documents and Skype chats were in the defendants’ possession, known about by counsel, not produced and not identified in a privilege log. In light of this new evidence, the magistrate judge reconsidered his previous recommendation and apportioned fault, fees and costs between the defendants and their former counsel, finding them both responsible for the discovery misconduct (a separate firm assisting with the intellectual property issues was not found liable for any discovery missteps). As a result, the magistrate judge recommended the plaintiffs be awarded $48,700.52 in attorney fees and costs. � Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, Case 1:10-cv-03488-SAS (S.D.N.Y. June 17, 2011). In this Freedom of Information Act (FOIA) litigation, U.S. District Judge Scheindlin withdrew her landmark opinion that declared certain metadata to be "intrinsic" to the electronic record. Noting the parties had resolved their production format dispute, Judge Scheindlin declared that the earlier opinion "was not based on a full and developed record," and that it would be prudent to withdraw the decision "[i]n the interests of justice." Further, Judge Scheindlin declared that the withdrawn opinion "shall have no precedential value in this lawsuit or in any other lawsuit." � In re The Reserve Fund Sec. and Derivative Litig., 2011 WL 2039758 (S.D.N.Y. May 23, 2011). In this securities litigation, the Securities and Exchange Commission (SEC) requested production of approximately 60 e-mail communications between the defendant and his wife exchanged over his employer’s e-mail system using his work e-mail address and employer-issued computer. Although the defendant asserted the e-mails were protected by the marital communications privilege, the SEC argued the employer’s e-mail policy extinguished any reasonable expectation of privacy – a requisite factor to support marital privilege. Reviewing the employer’s e-mail policy under the four-factor test from In re Asia Global Crossing, Ltd., the court found privilege did not extend because the defendant was aware of the policy that expressly banned personal use and reserved the rights of routine e-mail monitoring and third party access to employee e-mails; in short, the e-mails were not sent in confidence. Further, the court noted that it was unreasonable for employees working in “heavily regulated industries…in which companies are required by law to preserve e-mail communications for later use by regulators or other interested parties” to have an expectation of privacy. Accordingly, the court granted the SEC’s motion to compel the requested emails. � Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL 1549450 (W.D.N.Y. Apr. 21, 2011). In this business litigation, the defendant sought spoliation sanctions for the plaintiff’s failure to implement a timely written litigation hold. Arguing that the plaintiff’s oral litigation hold was insufficient, the defendant cited three e-mails missing from the plaintiff’s production as evidence of spoliation. However, noting that the record failed to reveal any relevant evidence had been destroyed or lost, the court distinguished Pension Committee and declined to follow the court’s presumption in that case that a failure to implement a written litigation hold would support an inference of spoliation. Instead, the court found that the relatively small size of the plaintiff could support its reliance on direct oral communication and that the substantial number of documents so 36
far produced refuted an inference of spoliation. Finding all relevant documents had been produced, the court further declined to permit a "fishing expedition" of discovery into the plaintiff’s document preservation actions based on mere speculation. � Wood v. Capital One Servs., LLC, 2011 WL 2154279 (N.D.N.Y. Apr. 15, 2011). In this debt collection practices litigation, the plaintiff sought extensive discovery including broad searches and production of ESI. Objecting to the requests, the defendants claimed the likely volume to be generated by the searches would exceed 1,750,000 documents from the respective defendants – projected to cost over $5 million to process, review and produce. Seeking protective orders, the defendants invoked the rule of proportionality set forth in the Fed.R.Civ.P. 26(b)(2)(C)(ii). While acknowledging that some of the documents in question were potentially relevant and that the defendants were large corporations with resources available to finance the discovery effort, the court determined the marginal relevance of the requests was far outweighed by the burden of responding and the exceedingly modest amount at stake (roughly $1,000). With one narrow exception, the court granted the defendants’ motions for a protective order and denied the plaintiff’s motion absent an agreement the plaintiff would bear costs of the requested discovery. � Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2011 WL 1125493 (W.D.N.Y. Mar. 21, 2011). In this business litigation, the plaintiff sought disclosure of internal e-mails relating to its breach of contract claim. Opposing the motion, the defendant argued the request was untimely and the information sought was not relevant, responsive or readily accessible. Noting the duty to supplement production continues even after the discovery period closes, the court found the requested e-mails were relevant and responsive to the plaintiff’s initial document request. Despite the defendant argument that producing the e-mails would require searching Exchange databases housed on an external 4 terabyte storage array at a cost of $13,000, the court asserted that the defendant had a duty to identify sources of information that were not reasonably accessible in its discovery response and rejected its belated arguments regarding burden. Accordingly, the court determined the defendant’s initial production was incomplete and granted the motion to compel. � Nat’l Day Laborer Org. Network v. United States Immigrations and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011). In this Freedom of Information Act (FOIA) litigation, the plaintiffs sought to obtain records in a usable format from four government agencies that produced electronic text records, e-mails, spreadsheets and paper records in an unsearchable PDF format, stripped of all metadata and indiscriminately merged together in one PDF file. Determining the defendants’ production did not comply with FOIA or Fed.R.Civ.P. 34, Judge Scheindlin remarked that “regardless of whether FOIA requests are subject to the same rules governing discovery requests, Rule 34 surely should inform highly experienced litigators as to what is expected of them when making a document production in the twenty-first century.” Citing Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security, in addition to three state court decisions, Judge Scheindlin held that certain metadata is “intrinsic” to the electronic record. Accordingly, the Judge determined that parties may no longer produce a significant collection of static images of ESI without accompanying load files. In addition, “metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’“ After ordering a detailed protocol for the defendants’ production and specifying the minimum metadata fields that must be included, the court concluded by commenting that the whole discovery issue could have been avoided “through cooperation and communication.” 37
Page 1 and 2: Electronic Discovery and Computer F
Page 3 and 4: Florida ...........................
Page 5 and 6: protocol. The search protocol allow
Page 7 and 8: Finally, the court expressed disple
Page 9 and 10: should rely on IT professionals to
Page 11 and 12: to compel, the plaintiff sought pro
Page 13 and 14: had been withheld, and if e-mails w
Page 15 and 16: the defendants continued to destroy
Page 17 and 18: ordering recovery and production of
Page 19 and 20: evidence supporting this contention
Page 21 and 22: ehavior as a direct contradiction o
Page 23 and 24: the effort required to conduct a pr
Page 25 and 26: defendant’s motion to dismiss was
Page 27 and 28: under Rule 803(6) of the Federal Ru
Page 29 and 30: pay judgment in favor of the plaint
Page 31 and 32: equally all costs associated with h
Page 33 and 34: subpoena would not “prejudice the
Page 35: stopped the automatic deletion of e
Page 39 and 40: commentary that “privacy is no lo
Page 41 and 42: documents since resorting to the Ha
Page 43 and 44: � Arista Records LLC v. Usenet.co
Page 45 and 46: expense of production. The court he
Page 47 and 48: substantive. Rejecting the SEC’s
Page 49 and 50: claimed these requests raised user
Page 51 and 52: efused to issue adverse jury instru
Page 53 and 54: evidence would have been favorable
Page 55 and 56: failed to issue a proper litigation
Page 57 and 58: tapes were meant only for disaster
Page 59 and 60: cost and time considerations requir
Page 61 and 62: defendant’s investment officer wa
Page 63 and 64: Aug. 22, 2003). Stating the order w
Page 65 and 66: which the court issued severe sanct
Page 67 and 68: ordered a computer forensics examin
Page 69 and 70: evidence, and/or failed to make rea
Page 71 and 72: information from its computer netwo
Page 73 and 74: production was incomplete, and move
Page 75 and 76: falsely claimed to have been raped
Page 77 and 78: � State v. Voorheis, 2004 WL 2581
Page 79 and 80: sanctions were disproportionate and
Page 81 and 82: the defendants were responsible for
Page 83 and 84: was not equitable to force the defe
Page 85 and 86: 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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spoliation. Through forensic analys
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Phoenix and determined that an elec
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the defendant was in possession, cu
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Nevertheless, the defendants believ
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one violation of the second order,
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delays and financial harm. In suppo
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plaintiff produced a mere ten e-mai
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defendant’s employees continuousl
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the e-mails and attachments to be r
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elating to any ex parte communicati
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“unadulterated fishing expedition
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e-mails establishing the documents
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metadata, the parties agree that th
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expense in restoring and searching
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and create a more organized and und
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� Phillip M. Adams & Assoc., LLC
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� ClearOne Communications, Inc. v
Page 289 and 290:
� Wright v. AmSouth Bancorp, 320
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metadata or searchable text. Follow
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� In re Fontainebleau Las Vegas C
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nature of the destroyed evidence, i
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appropriate because the plaintiffs
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The award stemmed from the court’
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were also overwritten per departmen
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order, the teacher declared the pro
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investigation of the plaintiff’s
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Regarding the defendants’ relevan
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� ABC Home Health Servs. v. IBM C
Page 311 and 312:
document preservation order. The re
Page 313:
search,” the court ordered the De
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