Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

commentary that “privacy is no longer grounded in reasonable expectations, but rather in some
theoretical protocol better known as wishful thinking,” and that sharing personal information with
others “is the very nature and purpose” of social networking sites the court ordered the plaintiff to
provide necessary authorization for access.
� Piccone v. Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010). In this employment
discrimination litigation, the parties cross-moved for spoliation sanctions, and the defendants
sought to compel production of certain electronic communications and forensic examination of the
plaintiff’s personal computer and other electronic data storage devices. The plaintiff argued
sanctions were warranted because the defendants failed to include in their production
approximately 200 e-mails that were allegedly destroyed when the defendants’ computer was
cleaned. Contending they produced all responsive e-mails in their possession, the defendants
countered that the plaintiff “cherry picked” her production such that forensic examination was
necessary to ensure complete production. Finding that both parties failed to establish the first
element of spoliation by not providing evidence that any relevant e-mails were destroyed after the
duty to preserve arose, the court denied sanctions. However, the court found the defendants were
entitled to explore through depositions an explanation for the discrepancies in the plaintiff’s
production. In regard to the forensic examination, the court ordered the defendants to pay for mirror
imaging of the plaintiff’s hard drive, and directed the plaintiff to turn the mirror image and certain
external disks over to her attorney for safekeeping.
� In re Payment Card Interchange Fee and Merch. Disc. Antitrust Litig., 2010 WL 3420517
(E.D.N.Y. Aug. 27, 2010). In this ongoing antitrust litigation, the defendants appealed an order
compelling the production of recordings and reports created pursuant to an investigation by the
European Commission into the defendants’ business practices in Europe. Joining the defendants
as amicus curiae, the Commission argued the information was confidential under European law
and that the doctrine of international comity should deny access to the plaintiffs. Analyzing the
foreign and domestic interests using the balancing test in the Restatement (Third) of Foreign
Relations Law §442, the court acknowledged the U.S. policy of broad discovery oriented toward
increasing fairness and accuracy in litigation and noted that foreign laws purporting to restrict
disclosure of information relevant to U.S. litigation are generally ineffective. On the other hand, the
court found that the Commission’s interests would be significantly undermined if its confidentiality
rules were disregarded, the documents originated in Europe and the information could be obtained
through other avenues. Despite the fact that the requested documents were likely to contain
relevant information, the court denied disclosure finding the interests of international comity
weighed in favor of the Commission.
� Nycomed U.S. Inc., v. Glenmark Generics LTD., 2010 WL 3173785 (E.D.N.Y. Aug. 11, 2010). In
this pharmaceuticals patent litigation, the plaintiff moved to strike portions of the defendants’
pleadings due to its unjustified withholding of relevant evidence and willful failure to search two
important and obvious repositories for responsive ESI. The defendants argued its withholding was
justified because the documents had already been produced by a third party, and claimed the ESI
repositories had been simply "overlooked." Rejecting the defendants’ excuses, the court
determined that the underinclusive nature of the defendants’ discovery efforts and searches was
willful – not an inadvertent omission. Based on the defendants’ "willful dereliction of its discovery
duties" and its status as a "substantial multinational corporation," the court found that monetary
sanctions in the amount of $100,000 to the plaintiff and $25,000 to the court clerk were justifiable.
The court denied more severe sanctions based on the level of prejudice suffered by the plaintiff
and declined to award attorneys’ fees noting the "resolution of these matters is long overdue."
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