Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

already produced other e-mails which were relevant to the case; however, they withheld
documents that may have been subject to certain privileges. The third-party argued that to disclose
the e-mails contained on the server would violate a confidentiality agreement made between the
third-party and another party to the lawsuit. Furthermore, the defendant argued that there should
be no cost-sharing because the documents are reasonably accessible and must be produced at
the third-party’s own cost. The New York judge declined to rule on the defendant’s motion and
instead transfer the issue to a federal judge in Delaware, stating that “[a] judge who is fully familiar
with the underlying litigation is in a better position to resolve such issues than a judge in a different
district with no knowledge of the case.” The parties did not object to the ruling and the motion was
sent forth before the federal court judge in Delaware overseeing the entire litigation.
� In re NTL, Inc. Sec. Litig., 2007 WL 241344 (S.D.N.Y. Jan. 30, 2007). In a class action claim
involving federal securities law violations, the plaintiffs moved for sanctions against the defendant,
alleging that the defendant deliberately destroyed and allowed spoliation of e-mails and other
electronically stored information. The defendant company fell into bankruptcy before this suit and
emerged from bankruptcy with two distinct subsidiaries conducting business on behalf of the
defendant. After bankruptcy, many electronically stored documents and e-mails were lost or
destroyed when the company emerged split into the two new companies. The plaintiffs argued that
one of the new entities had a duty to preserve and produce e-mails created and saved during the
previous company’s existence. The defendant argued that it had no duty to preserve the
information because the possibility of litigation could not have been foreseen prior to the
bankruptcy of its parent company. It further argued that it had no responsibility to preserve any of
its electronic documents sent from the parent company prior to the current suit. The court
concluded that defendant’s duty to preserve actually started when litigation was foreseen by former
company even though most of the documents and ESI ended up in the physical possession of new
companies. The court found that the defendant’s failure to preserve relevant documents and ESI
was grossly negligent and that it reasonably should have known to preserve all documents from
the parent company and issue a proper litigation hold that spanned across the old company and
the new companies. The court granted the motion for an adverse inference instruction and ordered
the defendant to pay attorneys’ fees and costs.
� In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., 2007 WL 121426
(E.D.N.Y. Jan. 12, 2007). In this class action, the defendants brought a motion to compel native
production of documents from the plaintiffs. During discovery, the plaintiffs made at least six
productions where electronic documents were printed to paper and then scanned and converted
into searchable TIFF images using optical character recognition software. This laborious process
stripped all metadata references from the original files. The defendants filed a motion to compel the
plaintiff to re-produce these documents natively and asked the court to order all subsequent
production of electronic documents in a native format. The plaintiffs opposed the motion to compel,
stating that the already produced the requested documents and to produce the documents again in
a native format would be burdensome and costly. The court determined that the newly amended
Federal Rules would apply to the parties; however, to require the plaintiffs to reproduce discovery
already in possession of the defendants would place a substantial and costly burden on the
plaintiffs. Yet, the court also ruled that the plaintiffs are on notice of the defendants’ request for
native files and stated that any subsequent discovery should be produced in a native format.
� Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006). In this
trademark infringement case, the plaintiff moved for discovery sanctions against the defendant,
claiming that the defendant failed to conduct complete or timely searches for electronic documents,
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