Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

Aug. 22, 2003). Stating the order would be redundant because of the existing federal preservation
orders, the defendants declined to stipulate to the order in state court but acknowledged their
ongoing preservation duties. The defendants also asserted that preserving the computer
information at issue would cost a considerable amount of money. In addressing the motion, the
court noted it was almost a “word-for-word” duplicate of the orders previously issued in the earlier
lawsuits and the defendant’s destruction in the current lawsuit was inadvertent. Despite this, the
court granted the motion, finding the federal preservation orders may not be “sufficient protection
for [the] plaintiff in this state action.” Addressing the defendant’s cost concerns, the court indicated
it would entertain cost-shifting but “not constrain the production of possibly relevant evidence on
account of the later need to allocate cost.”
� Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 WL 459267 (S.D.N.Y. Feb. 24, 2005). In a
breach of contract action, the defendant sought sanctions against the plaintiff for ignoring its
discovery obligations, violating document production orders, and irremediably prejudicing the
defendant’s ability to prepare for its case. The defendant claimed that the plaintiff engaged in
partial and delayed document production throughout the discovery period, specifically in one
instance producing more than 600 pages of e-mail one day before a scheduled court conference.
In assessing the defendant’s motion, the magistrate judge found no “coherent justification” for the
plaintiff to have “engaged in an excruciatingly slow and disjointed disclosure of documents,
stretching over a period of one year, under the guise of a ‘rolling’ production or a production in
‘waves’.” The magistrate further noted the plaintiff should have sought discovery extensions,
produced substantially all of its documents early on, and ensured document searches were careful
and thorough. The magistrate declined to dismiss the case and instead issued a detailed protocol
that outlined remedial discovery measures, including payment of attorney’s fees and costs relating
to the motion, preclusion of some evidence, and reopening of specified depositions.
� Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y.Sup. 2005). Claiming the defendant had a history of “past
fraudulent conduct,” the plaintiff, in a divorce proceeding, sought permission for her computer
forensic experts to “impound, clone and inspect the computer servers, hard drives, individual
workstation P.C., laptop and other items containing digital data” from the defendant. The plaintiff
also requested the defendant pay attorney fees and computer forensic expert costs. In response,
the defendant stated the request was overbroad, intrusive and burdensome. He also declared he
had no confidence in the plaintiff’s ability to safeguard his data based on the plaintiff’s history of
reckless and careless data handling. The court ordered both parties’ forensic experts, as well as a
court-appointed referee, to meet at the data collection locations. The court ordered that the
plaintiff’s expert would then copy the hard drives and immediately turn them over to the referee.
After all of the drives were copied, the experts and referee would examine the hard drives and both
parties would receive hard copies of relevant business records. The referee would maintain control
over the hard drive images until the case closed. The court also ordered the plaintiff to bear
production costs and each party to bear the costs of their own experts.
� United States v. Brand, 2005 WL 77055 (S.D.N.Y. Jan 12, 2005). In prosecuting charges against
the defendant for transporting minors for illegal sexual activity, the government claimed the
defendant used America Online instant messaging software in an attempt to engage in sexual
conduct with “Julie,” an undercover government agent posing as a minor. The government sought
to admit two transcripts of AOL internet communications between the defendant and two other
undercover agents, who had sent and received instant messages from the defendant. The
defendant argued the transcripts should not be admitted as they were irrelevant, unfairly prejudicial
and potentially confusing to the jury. The court determined one of the chat transcripts was
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