Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

efused to issue adverse jury instructions or issue a default judgment against the defendant, but
instead ordered the defendant to pay the costs associated with the preparation and argument of
the motions.
� Scott v. Beth Israel Med. Ctr., Inc., 2007 WL 3053351 (N.Y.Supp. Oct. 17, 2007). In this case, a
former doctor-employee sought contractual damages arising from the defendant’s alleged
termination without cause. On remand following reversal of the district court’s earlier summary
judgment order, the plaintiff sought a protective order requiring the return of e-mail correspondence
between himself and his attorney claiming attorney client privilege and the work product doctrine.
The defendant argued that their e-mail policy states that company e-mail is to be used solely for
business purposes and that employees have no personal privacy rights in any material created or
communicated on the company computer systems. The court agreed and denied the plaintiff’s
motion since the defendant notified the plaintiff of the use and monitoring policies.
� PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. Sept.
7, 2007). In this breach of contract case, the defendant sought production of all electronically
stored e-mails along with their corresponding attachments. The plaintiff produced a disc with emails
that, due to a technical glitch, were divorced from their proper attachments. Many efforts to
join the attachments failed and the defendant moved to order a second production at the plaintiff’s
expense. The plaintiff claimed such would be overly burdensome and costly but agreed to
reproduce at the defendant’s expense. Relying on Fed.R.Civ.P. 34(b), the court found that the
original production was not within the normal course of business or in a form readily usable and
therefore ordered the plaintiff to reproduce. The court also ordered the plaintiff to pay for the costs
of reproduction as the producing party presumptively bears the expense of production.
� In re Maura, 2007 WL 2231386 (N.Y.Sur.Ct. June 28, 2007). In a suit to determine her entitlement
to her decedent husband’s estate in spite of their prenuptial agreement, the respondent sought
discovery from the non-party attorney and his firm who drafted the agreement. She sought access
to the attorney’s computer for records of billing and all existing and deleted records concerning the
prenuptial agreement. The attorney argued attorney-client privilege with regard to other information
on the computer and offered the firm’s backup tapes in the alternative. The court held that the
backup tapes were insufficient as they would lack deleted and altered records and ordered the
attorney’s hard drive to be imaged. The court ordered the attorney to choose a computer forensics
expert to submit a cost proposal for the imaging. The attorney should then forward a copy of the
proposal to the respondent, at which time she would determine if she was willing to go forward with
or without the information.
� Valdez v. Town of Brookhaven, 2007 WL 1988792 (E.D.N.Y July 5, 2007). In a suit alleging
illegal eviction based on racial discrimination, the plaintiff sought a court imposed litigation hold on
the defendant’s relevant employee records, arguing the defendant had a history of “terrible record
keeping.” While the court noted that the defendant is under a duty to preserve evidence relevant to
the litigation, the court denied the preservation order request, stating preservation orders are
burdensome and expensive and should not be entered into lightly absent a clear need.
� Kingsway Fin. Serv. Inc. v. Pricewaterhouse-Coopers LLC, 2007 WL 1837133 (S.D.N.Y. June
27, 2007). In a securities suit, the parties entered an agreement whereby inadvertent production of
a purportedly privileged document would not operate as a waiver of privilege. In the issue at hand,
the defendant motioned the court for an order to compel the production of an email exchanged
between the plaintiff’s executive and attorney. The plaintiff originally produced the targeted email
inadvertently, but later included it as an attachment on a motion and served it on all the
defendants. The court held that as the plaintiff’s second production of the email was not
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