Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

ordered a computer forensics examination of the defendants’ computers, resulting in the discovery
of hundreds of e-mails and other relevant documents, including the customer list and other various
e-mails from the former employee to many of the defendant’s employees. Finding the defendants
violated the settlement order, the court stated that the defendants “acted willfully and in some
cases maliciously in violating the Order…perhaps the best description of [their] acts…would be
‘reckless indifference’ which has been found to be equivalent to willfulness…To put it bluntly they
just didn’t care about the Order." The court awarded $820,000 in compensatory and punitive
damages, as well as legal fees and costs.
� Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004). During an ongoing discovery dispute
in an employment discrimination case, the employee moved for sanctions against the employer for
failing to produce backup tapes containing relevant e-mails and for failing to produce other relevant
documents in a timely manner. See Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In
this latest motion, the employee contended that the employer, who recovered some of the deleted
relevant e-mails, prejudiced her case by producing recovered e-mails long after the initial
document requests. Furthermore, some of the e-mails were never produced, including an e-mail
that pertained to a relevant conversation about the employee. As such, the employee requested
sanctions in the form of an adverse inference jury instruction. Determining that the employer had
willfully deleted relevant e-mails despite contrary court orders, the court granted the motion for
sanctions and also ordered the employer to pay costs. The court further noted that defense
counsel was partly to blame for the document destruction because it had failed in its duty to locate
relevant information, to preserve that information, and to timely produce that information. In
addressing the role of counsel in litigation generally, the court stated that "[c]ounsel must take
affirmative steps to monitor compliance so that all sources of discoverable information are
identified and searched." Specifically, the court concluded that attorneys are obligated to ensure all
relevant documents are discovered, retained, and produced. Additionally, the court declared that
litigators must guarantee that identified relevant documents are preserved by placing a “litigation
hold” on the documents, communicating the need to preserve them, and arranging for
safeguarding of relevant archival media. See also Zubulake v. UBS Warburg, LLC, 231 F.R.D. 159
(S.D.N.Y. 2005) (Denying employer’s motion to assert an affirmative defense based on the delay in
asserting the defense and the prejudicial effects it would cause the employee in re-opening
discovery.)
� Cellco Partnership v. Nextel Communication, Inc., 2004 WL 1542259 (S.D.N.Y. July 9, 2004).
Responding to a motion to compel the production of documents in a case arising from a trademark
disagreement, the defendant withheld production of eight e-mails. The defendant claimed that
seven of the e-mails were protected by the attorney-client privilege doctrine. Six of these e-mails
contained advice given to the defendant’s employee from the defendant’s in-house counsel, and
the seventh e-mail contained legal advice from the defendant’s in-house counsel to one of the
defendant’s employees as well as to an advertising agency. Granting the plaintiff’s motion to
compel the 7 e-mails, the court determined that the e-mails were not attorney client privileged
because the “agency failed to demonstrate that it intended for the in-house counsel ‘to act as its
attorney’.” The defendant also disputed production of an e-mail from one of its employees to the
agency, claiming it was protected under the work-product doctrine. The court determined that this
e-mail was protected because the advice contained in the e-mail was given in anticipation of a
previous lawsuit involving the defendant.
� MasterCard Int’l, Inc. v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 22, 2004). Asserting a
copyright infringement claim against the operators of a pornographic website, the plaintiff sought
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