Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

tapes were meant only for disaster relief recovery and not for possible litigation. The court ruled
that the defendant did not have to produce all responsive documents under plaintiffs’ requests as it
was not entirely convinced that relevant and responsive documents would be found. However, the
court held that defendant must perform an abbreviated search using a small sample of dates and
search terms as supplied by the plaintiff. If the small search returns positive results, the plaintiff
would be given leave to move the court for further electronic searches of the backup tapes.
Furthermore, the court held that all costs, including attorney’s fees would be paid by plaintiff after
the defendant supplied proper affidavits and the court determined that such cost-shifting was
warranted.
� Eastman Kodak Co. v. Sony Corp., 2006 WL 2039968 (W.D.N.Y. July 20, 2006). The district
court affirmed the Special Master’s Report and Recommendation requesting, inter alia, to deny the
defendant’s motion to compel the plaintiff to “more specifically correlate information produced
electronically via a computer server, CD-Rom and DVD’s.” Asserting deprivation of due process,
the defendant argued the practical impossibility of finding relevant documents hidden in the
“electronic equivalent of 300 million pages.” After performing searches on the contested server, the
Special Master found the server appeared to be organized in a usable format. Although the court
recognized substantial time, effort and expense would be required to sort through the produced
documents, the court found this reasonable in light of the billions of dollars at issue in the case.
Ruling the documents were accessible, had been produced in the form in which it is usually
maintained, and that the plaintiff was in no better position to correlate the information to the
defendant’s discovery requests than was the defendant, the court denied the defendant’s motion to
compel.
� In re NYSE Specialists Sec. Litig., 2006 WL 1704447 (S.D.N.Y. June 14, 2006). In an order
addressing several discovery disputes, the court directed the defendants to produce all hard copy
documents as single page tiff images, along with corresponding Opticon and Concordance load
files, and instructed that all electronic documents be produced in their native format with metadata
intact.
� Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006). In a
case involving breach of fiduciary duty, fraud and misrepresentation, the plaintiff brought a motion
for sanctions against defendants and their counsel for spoliation and late production of evidence.
Despite notice of potential litigation, the defendants abandoned ten computer workstations
containing relevant information at a former office location. Defendants also failed to timely identify
and produce approximately 25 gigabytes of data stored on a server that was still in their
possession, initially asserting to their own counsel there were no electronic files to search. The
court found the defendants grossly negligent in abandoning the workstations and “at least
negligent” in their representations to counsel regarding the absence of any files to be searched.
The court also held that defense counsel had been grossly negligent in their failure to conduct an
independent inquiry to verify the accuracy of those representations. Granting plaintiff’s motion in
part, the court declined to issue an adverse inference instruction or preclude the defendants from
making a summary judgment motion, but awarded monetary sanctions and ordered the defendants
and their counsel to bear the costs equally.
� Curto v. Medical World Communications, Inc., 2006 WL 1318387 (E.D.N.Y. May 15, 2006). In
an employment action, the defendants objected to a finding that the plaintiff had not waived her
right to assert attorney-client and work product protection claims concerning e-mails and data
contained on two laptops owned by the plaintiff’s former employer. Specifically, the defendants
claimed a magistrate judge erred in considering whether the employer properly enforced its
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