Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

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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 70
information from its computer network, and used that information to compete unlawfully with the plaintiff. One group of defendants, Mission Capital, is a company that competes directly with the plaintiff’s company, and the individual Mission Capital defendants were formerly employed by the plaintiff. The other group of defendants, PDP Capital, is an investment advisor and fund management company and does not compete with the plaintiff or Mission Capital. All parties in the suit maintain offices in the same business suite, and all tenants of this office suite share a communication switch and data transmission line which connect the tenants’ computers to the Internet. As such, all the computers in the suite constitute a network, although the tenants do not have access to each other’s computers. PDP defendants sought Rule 11 sanctions against the plaintiff and plaintiff’s counsel for filing suit against them lacking in evidentiary support. The plaintiff maintains that its allegations against PDP were objectively reasonable based upon information from computer forensic experts that PDP had deliberately established a link between computer systems to move data back and forth between the plaintiff’s computer network and the PDP computer. Denying the PDP defendants’ motion for Rule 11 sanctions, the court held that the plaintiff made a substantial pre-filing inquiry that gave them a reasonable basis for believing that PDP defendants conspired with the Mission defendants. � Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). In a gender discrimination suit against her former employer, the plaintiff requested that the defendant produce “[a]ll documents concerning any communication by or between UBS employees concerning the plaintiff.” The defendant produced 350 pages of documents, including approximately 100 pages of e-mail. The plaintiff knew that additional responsive e-mail existed that the defendant had failed to produce because she, in fact, had produced approximately 450 pages of e-mail correspondence. She requested that the defendants produce the e-mail from archival media. Claiming undue burden and expense, the defendant urged the court to shift the cost of production to the plaintiff, citing the Rowe decision. Stating that a court should consider cost-shifting only when electronic data is relatively inaccessible (such as in this case), the court considered the Rowe 8-factor cost shifting test. The court noted that the application of the Rowe factors may result in disproportionate cost shifting away from large defendants, and the court modified the test to 7 factors: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production compared to the amount in controversy; (4) the total cost of production compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issue at stake in the litigation and; (7) the relative benefits to the parties of obtaining the information. The court ordered the defendant to produce, at its own expense, all responsive e-mail existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The court determined that only after the contents of the backup tapes are reviewed and the defendant’s costs are quantified, the court will conduct the appropriate cost-shifting analysis. See also Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003). � Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In the restoration effort that occurred according to previous e-discovery decisions in the matter, the parties discovered that certain backup tapes were missing and that e-mails had been deleted. The plaintiff moved for evidentiary and monetary sanctions against the defendant for its failure to preserve the missing tapes and emails. The court found that the defendant had a duty to preserve the missing evidence, since it should have known that the e-mails may be relevant to future litigation. Although the plaintiff did not file her charges until August 2001, by April of that year, "almost everyone associated with Zubulake recognized the possibility that she might sue," the court wrote. The court also found that the 71
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Electronic Discovery and Computer F
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Florida ...........................
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protocol. The search protocol allow
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Finally, the court expressed disple
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should rely on IT professionals to
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to compel, the plaintiff sought pro
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had been withheld, and if e-mails w
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the defendants continued to destroy
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ordering recovery and production of
Page 19 and 20: evidence supporting this contention
Page 21 and 22: ehavior as a direct contradiction o
Page 23 and 24: the effort required to conduct a pr
Page 25 and 26: defendant’s motion to dismiss was
Page 27 and 28: under Rule 803(6) of the Federal Ru
Page 29 and 30: pay judgment in favor of the plaint
Page 31 and 32: equally all costs associated with h
Page 33 and 34: subpoena would not “prejudice the
Page 35 and 36: stopped the automatic deletion of e
Page 37 and 38: far produced refuted an inference o
Page 39 and 40: commentary that “privacy is no lo
Page 41 and 42: documents since resorting to the Ha
Page 43 and 44: � Arista Records LLC v. Usenet.co
Page 45 and 46: expense of production. The court he
Page 47 and 48: substantive. Rejecting the SEC’s
Page 49 and 50: claimed these requests raised user
Page 51 and 52: efused to issue adverse jury instru
Page 53 and 54: evidence would have been favorable
Page 55 and 56: failed to issue a proper litigation
Page 57 and 58: tapes were meant only for disaster
Page 59 and 60: cost and time considerations requir
Page 61 and 62: defendant’s investment officer wa
Page 63 and 64: Aug. 22, 2003). Stating the order w
Page 65 and 66: which the court issued severe sanct
Page 67 and 68: ordered a computer forensics examin
Page 69: evidence, and/or failed to make rea
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Page 75 and 76: falsely claimed to have been raped
Page 77 and 78: � State v. Voorheis, 2004 WL 2581
Page 79 and 80: sanctions were disproportionate and
Page 81 and 82: the defendants were responsible for
Page 83 and 84: was not equitable to force the defe
Page 85 and 86: choose not to heed the court’s or
Page 87 and 88: magistrate judge improperly minimiz
Page 89 and 90: appropriate. The court refused to m
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Page 93 and 94: defendants failed to preserve and d
Page 95 and 96: portions of the plaintiff’s Faceb
Page 97 and 98: court denied sanctions, but issued
Page 99 and 100: equire the non-party to allow the p
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Page 105 and 106: � Itzenson v. Hartford Life and A
Page 107 and 108: � Eckhardt v. Bank of America, 20
Page 109 and 110: � Bank of Amer. Corp. v. SR Int
Page 111 and 112: � Morris v. Metals USA, 2011 WL 9
Page 113 and 114: did not address the employer’s ab
Page 115 and 116: � Mezu v. Morgan State Univ., 201
Page 117 and 118: any such information was irrelevant
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at Dulles airport, the defendants f
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documents in a manner that was resp
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“destroyed some documents because
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“would be even more reliable than
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defendant’s withholding of respon
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when it was reasonably anticipated.
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Mississippi � PIC Grp., Inc. v. L
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he allegedly sent to the victim. Th
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absent a motion to compel. The cour
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disclosure of the hard drive to the
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to all payment histories of account
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aware that a party in litigation mu
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not clear enough to warrant enforce
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ecause the computer expert testifie
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database contained proprietary info
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should have provided the substance
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protective relief (including cost s
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drive from a vital computer in the
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preserve ‘every shred of paper, e
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defendant plainly manifested an exp
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argued that it previously produced
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� United States v. Premera Blue C
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overwritten] well before th[is] law
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documents for use in her wrongful d
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devices that contain relevant elect
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asserting that the Federal Rules of
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excuse” for the obvious discovery
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defendants were not entitled to rec
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� Whitlow v. Martin, 2009 WL 3338
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documents belonging to the plaintif
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the filing of the claim, its failur
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confidential customer lists, quotat
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defendants at a cost of more than $
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expert. The court also held that an
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electronic discovery of the defenda
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within the plaintiff’s control an
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� Perfect Barrier LLC v. Woodsmar
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citing the defendants’ considerab
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� Kasten v. Doral Dental USA, LLC
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destruction of evidence indicating
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incident, her attorney’s letter c
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question to this court to determine
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� State v. Levie, 695 N.W.2d 619
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instruction because the plaintiff i
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plaintiffs’ alleged failure to me
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including those from their homes. A
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litigation was pending, he had not
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the illegal images onto his compute
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portions of the e-mail were not pro
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the resources to oppose the subpoen
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drive in temporary internet file fo
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"wireless sniffers" to intercept ap
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communications sent over her work c
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court also determined the attorneys
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� Keithley v. Homestore.com, Inc.
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destroyed relevant electronic docum
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personal sanctions due to an absenc
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Qualcomm, Inc. v. Broadcom Corp., 2
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liable for the destruction of the h
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investigation where the defendant r
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motion was denied by the trial cour
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documents with titles indicating th
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defendants had received requests to
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the backup tape data and to bear pr
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documents included an inaccurate bi
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� Playboy Enters., Inc. v. Welles
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� Peschel v. City of Missoula, 20
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spoliation. Through forensic analys
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Phoenix and determined that an elec
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the defendant was in possession, cu
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Nevertheless, the defendants believ
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one violation of the second order,
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delays and financial harm. In suppo
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plaintiff produced a mere ten e-mai
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defendant’s employees continuousl
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the e-mails and attachments to be r
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elating to any ex parte communicati
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“unadulterated fishing expedition
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e-mails establishing the documents
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metadata, the parties agree that th
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expense in restoring and searching
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and create a more organized and und
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� Phillip M. Adams & Assoc., LLC
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� ClearOne Communications, Inc. v
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� Wright v. AmSouth Bancorp, 320
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metadata or searchable text. Follow
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� In re Fontainebleau Las Vegas C
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nature of the destroyed evidence, i
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appropriate because the plaintiffs
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The award stemmed from the court’
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were also overwritten per departmen
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order, the teacher declared the pro
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investigation of the plaintiff’s
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Regarding the defendants’ relevan
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� ABC Home Health Servs. v. IBM C
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document preservation order. The re
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search,” the court ordered the De
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