Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

documents since resorting to the Hague Convention process would cause substantial delay, which
the court deemed “pointless.”
� Gucci Am., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010). In this trademark
infringement litigation, the plaintiffs served a subpoena on the third party United Overseas Bank of
New York (UOB NY) for the defendants’ bank records held in Malaysia, alleging the defendants
transferred approximately $900,000 received from the sale of counterfeit goods to the Malaysia
account. UOB NY denied disclosure to the plaintiffs arguing that disclosure would violate Malaysian
banking secrecy laws. Pursuant to the Restatement (Third) of Foreign Relations Law of the United
States § 442, the court followed a five-factor test in balancing the United States interest in the
foreign production of documents. After considering the factors, the court concluded that “the United
States interest in fully and fairly adjudicating matters before its courts…outweighs Malaysia’s
interest in protecting the confidentiality of its banking customers’ records.” The court also
considered the “hardship of compliance” on the party or witness from whom discovery is sought,
but determined that the prospect of significant hardship and likelihood of prosecution for
compliance with discovery in this case was nothing more than “mere speculation.”
� Irwin v. Onondaga County Res. Recovery Agency, A.T., 2010 WL 462948 (N.Y.A.D. 4 Dept.
Feb. 11, 2010). In this litigation, the plaintiff sought disclosure of all electronically stored
photographs and associated metadata. The defendant previously provided digital copies of 1,423
already-published photographs, with two photographs of the plaintiff, but denied production of the
remaining photographs, claiming the request was overbroad and constituted an invasion of
personal privacy. Pursuant to the Freedom of Information Law statute, the court held that
electronically stored photographs and associated metadata must be disclosed by a public agency if
properly requested by members of the public. However, unpublished photographs relating to active
or ongoing law enforcement investigations, or personal photographs depicting the agency’s
employees or staff, may be excluded from disclosure. Based on these determinations, the court
ordered production of the unpublished photographs and associated metadata that depict the
individual but do not depict active or ongoing law enforcement investigations. The court also
ordered production of metadata associated with the previously produced photographs.
� Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL
184312 (S.D.N.Y. Jan. 15, 2010). In this litigation involving hedge funds, the defendants sought
sanctions, alleging the plaintiffs engaged in evidence spoliation and submitted false and misleading
statements in regard to document preservation efforts. Originally, the thirteen plaintiffs discussed in
this case failed to issue written litigation holds when the duty to preserve arose in 2003. Seven of
the plaintiffs eventually issued written holds, while six plaintiffs failed to issue a written hold at any
time. After defining negligence, gross negligence and willfulness in the discovery context, the court
noted that following the final Zubulake opinion in July 2004, the duty to issue written litigation holds
was clear. The seven plaintiffs who eventually issued written holds were found to have acted
negligently, while the six plaintiffs who failed to issue any written litigation hold were found grossly
negligent and subject to a permissive adverse inference sanction. The court found all thirteen
plaintiffs worthy of monetary sanctions since they “conducted discovery in an ignorant and
indifferent fashion,” and awarded the defendants reasonable attorneys’ fees and costs associated
with the motion. Finally, the court ordered two of the plaintiffs to search backup tapes for the
relevant time period at their expense.
� Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009). In this action
brought under the Fair Debt Collection Practices Act, the defendant moved to prevent the plaintiff
from offering at trial an alleged duplicate of the automated telephone message that served as the
41