Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

expense of production. The court held it was not empowered to overturn the New York rule that
requires the cost of production to fall upon the party seeking discovery, which creates a strong
incentive for formulating requests to be as minimally burdensome as possible. Therefore, the court
denied the plaintiff’s motion to compel unless the plaintiff was willing to bear the costs.
� Anthropologie, Inc. v. Forever 21, Inc., 2009 WL 690239 (S.D.N.Y. Mar. 13, 2009). In this
copyright infringement litigation, the plaintiff sought production of electronic documents and
permission to appoint an expert to copy and inspect the defendants’ hard drives. The defendants
claimed the requested documents did not exist, but nonetheless provided summaries of the
information for "settlement purposes only." Finding it "virtually inconceivable" that the defendants
did not retain the data requested, given the scale of the defendants’ business, the court determined
that the defendants’ efforts reflected a "refusal to comply with even the minimal requirements of the
governing discovery rules." The court ordered production of the data that was used to create the
summaries and all documents that pertained to the plaintiff’s request, but delayed consideration of
the hard drive copying request until after production.
� Acorn v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009). In this civil rights litigation,
the plaintiffs sought sanctions alleging the defendants failed to issue a timely litigation hold or
conduct a search for responsive electronic documents. The defendants claimed it issued a "verbal"
litigation hold and instructed key individuals to search for responsive documents despite lacking the
technical resources to locate and access electronic documents. Finding the defendants had a duty
to preserve evidence and were grossly negligent in failing to issue a proper litigation hold, the court
granted motion costs and attorneys’ fees. However, the court denied an adverse inference
instruction citing the plaintiffs’ failure to demonstrate the favorability of the lost evidence. Regarding
the defendants’ searching efforts, the court ordered the defendants to review its prior responses
and supplement them if necessary, noting the plaintiffs had not provided any case law suggesting a
"manual" search of electronic files was insufficient.
� Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. and N.J., 2009 WL
577665 (S.D.N.Y. Mar. 5, 2009). In this racial discrimination suit, the plaintiffs sought an adverse
inference instruction sanction for the defendant’s failure to preserve performance evaluations and
to issue a litigation hold. The defendant argued that its failure to preserve the evidence was, in
part, due to the September 11th 2001 attacks, which destroyed the defendant’s executive offices.
Accepting the defendant’s argument, the court found that the preservation failure was a result of
negligence, but not gross negligence. Despite the preservation failure, the court denied the motion
for sanction as it determined there were other sources of evidence available to the plaintiffs.
� Schanfield v. Sojitz Corp. of Am., 2009 WL 577659 (S.D.N.Y. Mar. 6, 2009). In this employment
discrimination suit, the defendants sought production of thirty-six purportedly privileged e-mails
identified in the plaintiff’s privilege log. The defendants argued that these e-mails between the
plaintiff and his friends, former colleagues and family members that are attorneys, were not
protected by privilege. Addressing each e-mail category, the court held that the e-mails sent to
friends were not protected since the plaintiff failed to indicate that they were prepared in
anticipation of litigation. The court also found that work product protection was waived with respect
to the e-mails with colleagues since the material was disclosed. Finally, the court determined the emails
sent to family members that are attorneys were not attorney-client privileged because a nonattorney
was copied on the e-mails; however, those e-mails constituted work product because they
were prepared in anticipation of litigation.
� Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater New York, 2009 WL
393644 (E.D.N.Y. Feb. 13, 2009). In this RICO suit, the defendants sought reconsideration of the
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