Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

The court held that the e-mail was protected work product and that the defendant did not waive its
immunity by forwarding the document to her daughter.
� Xpedior Credit Trust v. Credit Suisse First Boston, 2003 WL 22283835 (S.D. N.Y. Oct. 2,
2003). The plaintiff moved for an order to compel the defendant to produce certain electronic
documents in connection with the breach of contract action. The defendant countered with a
motion for a protective order requiring the plaintiff to bear half the costs of producing the electronic
documents. The documents at issue reside on optical disks and DLT tapes. Applying the Zubulake
seven factor cost shifting test, the court found that cost shifting was not appropriate and ordered
the defendant to bear its own costs in producing the electronic data.
� United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003). The government in a bank fraud,
wire fraud, and securities fraud case issued grand jury subpoenas to several executives and topemployees
in the company, Adelphia Communications Corporation, being investigated. Adelphia
produced copies of 26 computer hard drives in response to the subpoenas. The Assistant United
States Attorneys assigned to the matter directed their staff to install the hard drives in certain
computer terminals belonging to the United States Attorney’s Office (“USAO”) so that the data
could be reviewed. The staff informed was informed that the hard drives “were evidence” and
should be installed in such a way as to prevent additions to or deletions from those drives. Shortly
thereafter, the computer consultant hired by defense counsel was permitted to make copies of the
hard drives in question at the main USAO office. In the course of reviewing the images, defense
counsel’s computer expert determined that several USAO confidential files associated with the
case at issue as well as other pending cases were produced during the imaging. The defendants
argued that the Government waived its work product privilege when it voluntarily permitted defense
counsel to copy the hard drives. The Government contended that disclosure of USAO files was
inadvertent and therefore did not constitute waiver of the privilege. The court used a four part
balancing test to determine that no waiver of privilege had occurred.
� Keir v. UnumProvident, 2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003). In an ERISA class action
suit, the plaintiffs sought an order from the court directing the defendant to preserve all electronic
evidence relevant to the matter. After noting that the defendant “already had a duty to preserve any
tapes containing e-mails as of the date litigation commenced,” the court ordered the defendant to
preserve all relevant electronic data and to specifically preserve six days of e-mail records which
were contained on backup tapes and hard drives. Instead of preserving all existing backups, or
conducting a full tape e-mail backup, the defendant’s technical staff decided to implement a special
snapshot backup which would only preserve e-mails on the system as of the day or days the
snapshot was taken. In evaluating the defendant’s conduct with respect to the preservation order,
the court stated that “UnumProvident had ample time in the weeks before the December 27
[preservation] Order was signed to consult with its IT Department and with IBM to inform itself
about the technological issues relevant to the preservation of electronic data so that it could bring
accurate information to the negotiations of the preservation order and the conferences with the
court in which the December 27 Order was shaped, and comply promptly with the Order after it
was issued.” The court found the defendant’s failure to preserve was unintentional and criticized
the defendant’s poor compliance with the preservation order. The court recommended that further
action be taken to determine the feasibility of retrieving the lost data and the extent of prejudice to
the plaintiffs in order for the court to fashion a remedy for the plaintiffs.
� The Carlton Group v. Tobin, 2003 WL 21782650 (S.D.N.Y. July 31, 2003). The plaintiff, a
financial services company, brought suit against several defendants claiming that the defendants
deleted files from the plaintiff’s computers, conspired to steal confidential and proprietary
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