Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

evidence would have been favorable to the opposing party. The court held that the plaintiff had a
duty to preserve relevant electronic information upon filing suit and acted negligently, not willfully,
in failing to timely issue a litigation hold. The court also found that the defendant did not meet its
burden of demonstrating that the missing email would have contained relevant information
unfavorable to the plaintiff or that it was prejudiced without those records. As such, the court
refused to issue an adverse inference instruction but did find that the defendant was entitled to
reimbursement of reasonable expenses incurred in bringing the motion.
� Gragg v. Int’l Mgmt. Group (UK), Inc., 2007 WL 1074894 (N.D.N.Y. Apr. 5, 2007). In an action
initially centering on various breach of contract and related claims, the magistrate judge found the
defendant’s disclosure of four privileged e-mails to plaintiff’s counsel was inadvertent and did not
provide a basis for waiving attorney-client privilege. The e-mails in question were compiled along
with approximately 200 other e-mails by an assistant in the defendant’s in-house legal department
and produced on CD-ROM. Neither outside nor in-house counsel reviewed the CD-ROM for
privileged material before it was sent to the plaintiff. After an appeal by the plaintiff, the magistrate’s
discovery order was reversed and remanded for additional consideration. In the interim, the plaintiff
supplemented his original complaint with several federal RICO related claims. Characterizing the
bulk of the claims as matters of federal question jurisdiction, the magistrate judge held that federal
law governed any privilege determinations in the suit. Weighing factors outlined under federal law,
the magistrate found the defendant had waived privilege as to the inadvertently produced e-mails.
In particular, he cited a lack of reasonable precautions to prevent disclosure and the relatively low
volume of e-mails produced in total as reasons for that conclusion. However, the magistrate
declined to find that the scope of the waiver extended to the subject matter of the e-mails, as the
plaintiff urged, and held that the waiver only extended to the produced materials.
� In re Veeco Instruments, Inc. Sec. Litig., 2007 WL 983987 (S.D.N.Y. Apr. 2, 2007). In this
securities litigation, the plaintiff sought to compel the defendant to produce several named
individuals’ documents from back-up tapes covering an eight-month period. The defendant
objected, arguing that the plaintiff’s motion was unduly delayed and that restoring and searching
the back-up tapes would be extraordinarily burdensome and costly. The defendant further argued
that if production of the back-up tapes was ordered, the plaintiff should bear the costs. The court
noted that while the defendant had neglected to identify the back-up tapes as an inaccessible
source of potentially responsive information, as required by Fed. R. Civ. Pro. 26(b)(2), both parties
had overlooked their obligation to discuss discovery parameters and protocols. Finding that the
plaintiff could not reasonably assume that the defendant would have undertaken discovery of the
back-up tapes as a matter of course, the court determined that the back-up tapes were not
reasonably accessible. The court then considered whether good cause justified discovery of the
back-up tapes despite the associated burdens and costs. The court cited the resources of the
parties, the discoverability of the information, the specificity of the request and the unavailability of
the information from other more accessible sources as reasons demonstrating good cause.
Accordingly, the court directed the defendant to restore the back-up tapes for the specified time
period and to produce responsive, non-privileged information to the plaintiff. Turning to the issue
cost allocation, the court directed the defendant to initially to pay for the cost of production and
postponed further cost-shifting analysis until it had a chance to review the results of the search and
consider the actual time and effort expended by the defendant.
� Stanziale v. Pepper Hamilton LLP, 2007 WL 473703 (S.D.N.Y. Feb. 9, 2007). In a case involving
claims of malpractice and breach of fiduciary duty, inter alia, the defendant moved a federal court
in New York to compel the production of e-mails contained on a third-party’s server. The third-party
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