Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� Orbit One Commc’ns, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D. N.Y. Oct. 26, 2010). In
this corporate litigation, the defendant sought spoliation sanctions. Discussing preservation
obligations, the court criticized the standard of “reasonableness and proportionality” articulated in
Victor Stanley II and Rimkus Consulting Group as “too amorphous to provide much comfort to a
party deciding” what to retain. Instead, the court advised parties to adhere to the Zubulake IV
standard of retaining “all relevant documents…in existence at the time the duty to preserve
attaches.” Noting that ordinary negligence is sufficient in its circuit for a spoliation inference, the
court found the plaintiffs did not adhere to appropriate preservation procedures by implementing an
inadequate litigation hold, failing to involve a key IT employee, entrusting data to the individual with
the greatest incentive to destroy it and allowing “cavalier” treatment of that information.
Nevertheless, the court asserted that although a party’s preservation efforts may be insufficient,
sanctions are not warranted unless there is proof that some information has actually been lost and
was relevant. In so holding, the court also noted it respectfully disagreed with the Pension
Committee ruling that held some level of sanctions are warranted as long as any information was
lost due to inadequate preservation practices. Despite the plaintiffs’ failure to “engage in model
preservation” of ESI, the court denied the sanctions request determining there was insufficient
evidence that any relevant information was destroyed.
� Voom HD Holdings LLC v. EchoStar Satellite LLC, No. 600292/08 (N.Y.Sup. Nov. 3, 2010). In
this breach of contract action, the plaintiff sought spoliation sanctions alleging the defendant
destroyed e-mails. The defendant relied upon its employees to make relevancy and
responsiveness determinations, and argued it was unnecessary to suspend the company’s
automatic document disposal process as it was up to the custodians to preserve. Addressing the
duty to preserve, the court dismissed the defendant’s argument that the parties’ settlement efforts
precluded the preservation duty, noting that argument would allow parties to freely destroy
documents and e-mails, simply by “faking a willingness to engage in settlement negotiations.” The
court also noted that the defendant was previously sanctioned for spoliation in a separate matter,
Broccoli v. EchoStar Communications Corp. in 2005. Finding the conduct in the instant action even
more egregious than in Broccoli, the court held the defendant acted in bad faith in destroying
relevant e-mails and engaged in the “type of offensive conduct that cannot be tolerated by the
court.” As such, the court imposed an adverse inference instruction and awarded attorneys’ fees
and costs. In support of its findings, the court noted that the defendant is “a large public corporation
with ample financial resources” to institute and enforce a proper litigation hold and referenced the
fact that the defendant hired a new in-house lawyer following the Broccoli decision primarily to
address these issues.
� Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010). In this personal injury action, the
defendants sought access to the plaintiff’s current and historical Facebook and MySpace accounts,
including all deleted pages and related information, which may have contained information
inconsistent with claims made concerning the extent and nature of the plaintiff’s injuries. The court
found that the public portions of the plaintiff’s social networking sites contained content that was
material and necessary to the litigation, and discerned a reasonable likelihood that the same would
hold true as to the private portions. Despite the plaintiff’s objections on privacy grounds, the court
cited privacy disclaimers in the MySpace and Facebook policies, and held that production of the
plaintiff’s social network account entries would not violate her privacy rights. The court also found
the defendant’s need for the information outweighed any privacy concerns, and determined that
preventing access would directly contravene the strong public policy in favor of open disclosure
and condone attempts “to hide relevant information behind self-regulated privacy settings.” Noting
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