Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

protocol. The search protocol allowed electronic evidence consultants to create a forensic copy of
the computer’s hard drive, identify any potentially relevant documents, and, if such documents
were found and identified, allow the former-CEO to create a privilege log. The district court affirmed
the magistrate’s order and former-CEO appealed. The appellate court dismissed the former-CEO’s
appeal of the lower court’s non-final interlocutory discovery order.
District of Columbia
� Williams v. Dist. of Columbia, 2011 WL 3659308 (D.D.C. Aug. 17, 2011). In this wrongful
termination litigation, the defendant requested the return of an allegedly privileged e-mail
containing a 104-page document related to the plaintiff’s termination. Although the defendant
initially requested the immediate return of the privileged documents, the plaintiff never responded
and the defendant took no further action for more than two years until the plaintiff identified the email
as an exhibit for trial. Reviewing the defendant’s discovery conduct, the court determined it did
not meet the burden required to demonstrate that reasonable steps were taken to prevent or
remedy inadvertent disclosure. Specifically, the court took issue with the defendant’s unsworn
statements from counsel — who had not been involved with the case at the time of disclosure —
and determined that the generic statements failed to sufficiently detail the reasonableness of its
review procedures including its methodology, the total number of documents reviewed or any time
pressure imposed by the plaintiff’s discovery requests. Further, the court found that the defendant’s
two year stagnancy did not constitute reasonable attempts to rectify its error. Citing each failure as
independent ground for denial, the court denied the motion to exclude and waived privilege.
� DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011). In this class action dispute
concerning free public education under the Individuals with Disabilities and Education Act, the
defendant filed a motion to reconsider the grant of the plaintiff’s motion to compel production and
the court’s determination that privilege was waived for all e-mails yet to be produced. On the day
the court was scheduled to issue its opinion, the plaintiffs’ counsel informed the court that the
defendants had produced thousands of e-mails days before trial and were continuing to "document
dump" after trial concluded. The defense counsel claimed the District was understaffed, committed
supplemental searches that yielded tens of thousands of additional e-mails, discovery was
voluminous and there were not "enough bodies" to complete the process before trial. Denying the
defendants’ motion, the court cited the "repeated, flagrant, and unrepentant failures to comply with
Court orders" and "discovery abuse so extreme as to be literally unheard of in this Court." The
court also repeatedly noted the defendants’ failure to adhere to the discovery framework provided
by the Federal Rules of Civil Procedure and advised the defendants to invest time spent "anklebiting
the plaintiffs" into shaping up its own discovery conduct.
� United States v. Halliburton Co., 2011 WL 208301 (D.D.C. Jan. 24, 2011). In this qui tam action
alleging fraud perpetrated against the United States, the plaintiff requested an order from the court
requiring the defendants to search the electronic data of all employees who were copied on e-mails
that were previously produced. The defendants argued that this search would encompass an
additional 35 custodians that possess an average of 15 to 20 GB of data and that it would take two
to ten days per custodian for the collection process before review could occur. Denying the
plaintiff’s request for additional searches, the court noted that the defendants had already spent “a
king’s ransom” of $650,000 on discovery and had produced more than 2 million paper documents,
thousands of spreadsheets and more than half a million e-mails. Further, the court determined the
plaintiff failed to demonstrate that any e-mails not produced were crucial to her claims.
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