Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

uled that the plaintiff failed to properly preserve any e-mail evidence. The court noted the
defendant was not asking for a ruling based on spoliation and failure to preserve evidence, but it
found that it would be “futile to order [the plaintiff] to conduct a diligent computer-by-computer
search.” The court further ruled that Spain’s privacy laws are not applicable in United States
Federal Courts and cannot stand as a legal basis for failure to produce documents or preserve
documents. The defendant was granted leave to file a motion for sanctions.
� United States v. Tamez, 2006 WL 2854336 (S.D.N.Y. Oct. 5, 2006). A judge’s sentence for a
defendant convicted of embezzlement, inter alia, was increased by two levels for obstruction of
justice -- namely the defendant’s deliberate deletion of e-mail from a workplace-issued laptop. A
computer forensics expert determined the defendant, a high-ranking DEA official, deleted
incriminating e-mails and files from his government computer shortly after the DEA informed him
that he was placed on administrative leave for suspicion of embezzlement. The defendant filed a
motion asking the court to set aside the upward departure from the sentencing guidelines because
the e-mails were not deleted deliberately. He argued that he only deleted the files because of
department policy requiring departing employees to return laptops in the same condition in which
they were issued. The defendant further argued his personal AOL log in information was only
deleted to prevent others from obtaining his personal information. The court, however, found
defendant’s arguments “patently absurd”. There was no doubt that defendant was “intentionally
seeking to destroy this evidence to interfere with the investigation. By deleting the files--some of
which have not been recovered in usable form or at all--he impeded the Government’s
investigation.” The upward departure of two levels in sentencing was affirmed by the court.
� Quinby v. WestLB, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006). In an employment discrimination
suit, the defendant sought a court order requiring the plaintiff to bear a portion of the costs for
restoring and searching backup tapes. The defendant hired Kroll Ontrack to restore and search
data from the following locations: 171 backup tapes; Kroll Ontrack’s archives from a previous
matter; and backup tapes containing e-mail for employees who worked outside the United States.
The plaintiff argued the costs should not be shifted since the defendant had a duty to preserve the
requested e-mail in an accessible format. The defendant argued its only duty was to preserve the
evidence, it had no duty to preserve the data in a particular format, and a restoration of so many
documents should fall on the plaintiff. The court agreed in part, holding the producing party does
not have an explicit duty to preserve evidence in an accessible format. However, the producing
party will bear the cost of producing any evidence preserved in an inaccessible format after
litigation is reasonably anticipated. The court stated this would “[P]revent parties from taking unfair
advantage of a self-inflicted burden by shifting part of the costs of undoing the burden to an
adversary.” However, it if was not reasonably foreseeable that the evidence at issue would have to
be produced, the responding party who converts the evidence into an inaccessible format after the
duty to preserve evidence arose, could still seek to shift the costs associated with restoring and
searching that evidence. For a small portion of the defendant’s inaccessible data that the
defendant could not have reasonably anticipated producing, the court relied on the Zubulake
seven-factor cost-shifting test and ruled the plaintiff should share 30 percent of the production
costs. See also Quinby v. WestLB AG, 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007) (amending the
court’s original cost-shirting decision relating to backup tape restoration costs).
� Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (2006). In a fraudulent transaction case, plaintiffs
requested the court to order the production of e-mails created almost two years prior to the alleged
misconduct. Plaintiffs’ request required defendant to restore several backup tapes at a significant
cost. Defendant argued that there was no obligation to restore any backup tapes because the
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