Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

Finally, the court expressed displeasure with data downgrading stating, "taking an electronic
document . . . printing it, cutting it up, and telling one’s opponent to paste it back together again,
when the electronic document can be produced with a keystroke, is madness." Ultimately, the court
stayed action on the motion pending the defendant’s responses to the questions posed.
� In re Rail Freight Fuel Surcharge Antitrust Litig., 2009 WL 1904333 (D.D.C. July 2, 2009). In
this antitrust action, the defendants moved for bifurcated discovery between class certification and
merits discovery. The defendants contended that bifurcated discovery was possible through the
use of search terms to effectively isolate electronically stored information (ESI) relevant to
"certification" but not "merits" discovery. The defendants argued that bifurcated discovery would
facilitate early resolution of the certification issue and reduce the burden of subsequent merits
discovery. In opposition, the plaintiffs argued that certification and merits discovery are
indistinguishable as evidence regarding the merits was also crucial to certification. The plaintiffs
also argued that bifurcated discovery would forced the defendants to conduct document review to
classify ESI as either class certification or merits discovery as no search engine could effectively
distinguish between the two, and thus simultaneous discovery would be more efficient and cost
effective. Magistrate Judge Facciola agreed with the plaintiffs’ contention that the issues involved in
certification and merits discovery were closely intertwined. The court expressed doubt that the
defendants’ could effectively distinguish between the two categories of documents, noting that the
defendants did not propose exactly how the lawyers will "create a search engine so refined and
exquisite." The court also held that bifurcation would delay the proceedings and hinder judicial
economy, citing the delays and costs associated with continued need for judicial supervision and
the increased number of disputes over discovery in a bifurcated case. Accordingly, the court
denied the motion for bifurcated discovery.
� Covad Commc’ns. Co. v. Revonet Inc., 2009 WL 1472345 (D.D.C. May 27, 2009). In this
ongoing trade secrets misappropriation litigation, the plaintiff sought forensic images of the
defendant’s drives and computers as well as forensic searches of its database and e-mail servers.
The defendant argued that its servers were too fragile for forensic images and that imaging
constituted an undue burden. The defendant also objected to the forensic search of its servers,
claiming it may reveal information that the defendant is obliged by contract to keep confidential.
Disregarding the defendant’s arguments, the court granted the plaintiff’s request for forensic
imaging, finding the imaging would not stress the servers any more than day-to-day use. The court
also ordered the forensic search of the defendant’s servers, stating that no alternative way existed
and that any confidential material could be safeguarded by a protective order. Regarding the e-mail
servers, the court determined insufficient authority existed to conclude ESI deficiency allegations
automatically warranted forensic searches. The court reserved decision on whether forensic
examination was appropriate until the plaintiff’s expert’s report was submitted. The court also
ordered a comparison between servers to determine what data existed on non-operational servers
that did not exist on the remaining operational one.
� Asarco, Inc. v. United States Envtl. Prot. Agency, 2009 WL 1138830 (D.D.C. Apr. 28, 2009). In
this environmental litigation, the plaintiff filed a motion to take discovery. The plaintiff contended
that the defendant’s keyword search was conducted in bad faith, as evidenced by the fact it used
only one search term. Finding the plaintiff’s argument persuasive, the court ordered an additional
keyword search utilizing four additional key terms. Notably, the court stated that "keyword searches
are no longer the favored methodology." The court concluded by recommending summary
judgment on the merits in favor of the defendant after the second search is completed, determining
that there is no genuine issue of material fact whether additional defendant data exist.
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