Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

inadvertent, it waived the attorney-client privilege and therefore the defendant’s motion to compel
was granted.
� In re Sept. 11th Liab. Ins. Coverage Cases, 2007 WL 1739666 (S.D.N.Y. June 18, 2007).
Following the terrorist attacks of September 11, 2001, numerous victims filed claims against the
Port Authority of New York and New Jersey (“Port Authority”) as the owner and operator of the
Twin Towers, and its lessee Westfield Corporation, which procured commercial liability insurance
under the general name World Trade Center Properties LLC (“WTCP”) through Zurich American
Insurance Company (“Zurich”). In the pending litigation, these parties sought indemnification and
declaratory relief from Zurich. Zurich argued that neither the Port Authority nor Westfield were
named insureds under the policy and refused to indemnify or pay out claims. Ultimately, Zurich
changed its position, and following dismissal of the case, Port Authority and Westfield moved for
sanctions, alleging Zurich’s position throughout the pleadings was objectively unreasonable in
violation of Rule 11 of the Federal Rules of Civil Procedure (“FRCP”) and the discovery abuses
violated FRCP 37. The court held Zurich and its counsel liable for $1,250,000 based on violation of
both Rules. As Zurich deleted the electronic version of an essential document and possessed the
paper version for over three years before producing it, the lease holders were successful in
meeting the burden for the court to impose sanctions. The court determined the $1,250,000 was
sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.
� Calyon v. Mizuho Securities USA, Inc., 2007 WL 1468889 (S.D.N.Y. May 19, 2007). In a suit
alleging violation of the Computer Fraud and Abuse Act, breach of fiduciary duty, unfair
competition, inter alia, the plaintiff motioned the court to compel the defendants to produce mirror
images of the hard drives of their personal computers and other computer storage devices to the
plaintiff’s computer forensic expert for inspection. The plaintiff alleged the defendants used e-mail
and small computer storage devices to remove vast quantities of the plaintiff’s confidential and
proprietary data. While the defendants agreed to preserve the hard drives by creating mirror
images, the parties disagreed as to who should inspect the mirror images. The plaintiff argued their
expert should have complete access to the images, and the defendants argued that granting the
plaintiff’s expert unfettered access would impermissibly invade the privacy rights of the defendants
and their non-party family members who also used the computers. The defendants proposed their
own expert should inspect the mirror images using search terms provided by the plaintiff, or that
the search be performed by an independent third-party expert. The court referred to the committee
notes of Fed. R. Civ.P. 34(a), which states that a party is not entitled to “a routine right of direct
access to a party’s electronic information system, although such access might be justified in some
circumstances.” The court held the plaintiff failed to show how its direct access was justified under
these circumstances. As the defendants’ expert was fully capable of performing the search, as well
as working with the plaintiff’s attorney, the court found no reason to introduce an additional layer of
expertise by requiring an independent expert. The court ordered the defendants to preserve the
mirror images in question and to make their expert accessible for consultation with the plaintiffs
counsel and expert on an on-going basis.
� De Espana v. American Bureau of Shipping, 2007 WL 1686327 (S.D.N.Y. June 6, 2007). In a
suit regarding the casualty of a vessel off the coast of Spain, the defendant sought sanctions for
the plaintiff’s alleged spoliation of email and electronic documents. The court set out a three factor
test to determine if sanctions were warranted, which stated that the party seeking sanctions for
spoliation must demonstrate: (1) that the opposing party had an obligation to preserve the
evidence; (2) it acted culpably in destroying or failing to preserve the evidence; and (3) the
evidence would have been relevant to the case, in that a reasonable jury could find that the
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