Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

withheld documents. Upholding the magistrate’s adverse inference instruction, the court declared,
“the detrimental effect of [the] defendant’s failure to produce documents on [the] plaintiff is the
same regardless of [the] defendant’s reasons for refusing to produce them.”
� Board of Managers of the Atrium Condo. v. West 79th St. Corp., 17 A.D.3d 108 (N.Y. App. Div.
2005). In a property ownership dispute, the defendant claimed the plaintiff failed to timely serve a
reply to the defendant’s counterclaims. The plaintiff claimed to believe the matter was being held in
abeyance pending ongoing extensive negotiations. Noting the plaintiff’s late reply did not show a
“demonstrable pattern of willful delay,” the court denied the defendant’s request for electronic
discovery of the plaintiff’s attorney’s computers.
� In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005). In a bankruptcy proceeding,
company officers used the company e-mail system to communicate with their personal attorney.
During discovery, the officers refused to produce these e-mails, withholding on the grounds of the
attorney-client, work product, and joint defense privileges. The employer’s trustee moved to compel
production, claiming the officers waived any privileges with regard to the e-mails by using the
corporate e-mail system to draft them. In analyzing whether the attorney-client privilege applied,
the court weighed the following four factors: “(1) whether his employer maintains policy banning
personal or other objectionable use; (2) whether employer monitors use of employee’s computer or
e-mail; (3) whether third parties have right of access to employee’s computer or e-mail; and (4)
whether employer notified employee, or whether employee was aware, of any use and monitoring
policies.” Noting that “[s]ending a message over the [company’s] e-mail system was like placing a
copy of that message in the company files,” the court nevertheless found the attorney-client
privilege was not waived as a matter of law, because the company’s e-mail policies regarding use
and monitoring were unclear. The court also found the work product privilege was not waived
because the parties did not distinguish between opinion and non-opinion work product. The court
further noted that the officers may have reasonably believed the e-mails would remain confidential.
� Zubulake v. UBS Warburg LLC, 382 F.Supp.2d 536 (S.D.N.Y. 2005). In the seventh decision
issued in this employment discrimination lawsuit, which has addressed numerous electronic
discovery topics, the defendants moved to preclude various pieces of information from evidence at
trial, including the court’s first five opinions relating to its deficient discovery. The defendants
argued the earlier decisions – which included the court’s award of electronic discovery spoliation
sanctions against the defendants – were irrelevant and unfairly prejudicial. The court agreed,
noting “jurors will be told all they need to know through the evidence admitted at trial and my
charge.” The defendants also requested preclusion of discovery correspondence among defense
counsel and evidence relating to its failure to preserve monthly backup tapes. The court
determined the plaintiff would be allowed to introduce this evidence only if the defendants opened
the door by offering evidence regarding the reasonableness of their actions. Finally, the plaintiff
indicated that she intended to elicit testimony from defendants’ counsel relating to its client’s e-mail
and backup tapes preservation practices. The defendants sought preclusion of defense counsel
testimony and argued the testimony would be cumulative since the defendants had already
produced information relating to their document retention policy. The court granted the motion,
stating it did “not see any legitimate need plaintiff may have for calling opposing counsel given the
extensive discovery on the issue of e-mail and back-up tape preservation and retention.”
� Weiller v. New York Life Ins. Co., 2004 WL 3245345 (N.Y. Sup. Ct. Mar. 16, 2005). In a class
action disability insurance coverage lawsuit in New York state court, the plaintiff sought a
stipulation to a state court preservation order based on e-mail destruction in a related federal class
action lawsuit by one of the defendants. See Keir v. UnumProvident, 2003 WL 21997747 (S.D.N.Y.
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