Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

the defendant violated the preservation order and deleted data from the laptop. At a subsequent
evidentiary hearing, a magistrate judge recommended civil contempt sanctions against the
defendant for “knowingly and in bad faith violat[ing] the original discovery preservation order and . .
. deliberately deleting data from the laptop.” The district judge found the defendant in civil contempt
and awarded $50,000 in costs and attorney fees against him. The appellate court, however,
reluctantly found the defendant not liable for violating the settlement agreement since he deleted
the data before signing the agreement. Nonetheless, the court held the defendant liable for
violating the district court’s preservation order and ordered the defendant to pay attorney fees
attributed to the file deletion.
� Fraser v. Nationwide Mutual Ins. Co., 352 F.3d 107 (3d Cir. 2003). In an employment termination
suit, the plaintiff alleged that the defendant violated the Electronic Communications Privacy Act
(ECPA) by searching, without the plaintiff’s express permission, the plaintiff’s e-mail stored on the
defendant’s central file server. The ECPA prohibits “intentionally access[ing] without authorization a
facility through which an electronic communication service is provided.” The court held that
because the plaintiff’s e-mail was stored on the defendant’s system, the defendant’s search of the
plaintiff’s e-mail fell within the exception to protection of the ECPA, which allows seizures of e-mail
authorized “by the person or entity providing a wire or electronic communication service.”
� United States v. Lloyd, 269 F.3d 228 (3d Cir. 2001). The Third Circuit has ruled that a man
convicted of planting a computer “time bomb” that crippled operations at New Jersey-based
Omega Engineering Corp. is not entitled to a new trial on the basis of a juror prejudice. The ruling
reinstates the verdict in which the defendant was convicted on one count of computer sabotage.
Computer experts were essential in recovering the evidence of the "time bomb.”
Delaware
� Cordance Corp. v. Amazon.com, Inc., 2012 WL 1194211 (D. Del. April 11, 2012). The defendant,
who prevailed in this patent infringement suit, submitted a bill of costs that included $447,694.69
for e-discovery costs. The plaintiff objected, alleging it was indigent, that the defendant engaged in
stalling tactics to increase costs and, alternatively, that costs should be significantly reduced
because the bill was unsubstantiated. With regard to the plaintiff’s primary objections, the court
found that the plaintiff failed to provide sufficient evidence of its financial health or of the
defendant’s repeated attempts to delay discovery. Analyzing the plaintiff’s alternative objection, the
court cited the Third Circuit’s decision in Race Tires Am., Inc. v. Hooiser Racing Tire Corp —
specifically the finding that 28 U.S.C. § 1920(4) “does not authorize taxation merely because
today’s technology requires technical experience not ordinarily possessed by the typical legal
professional”—as controlling precedent. Under this framework, the court limited recoverable costs
to scanning or conversion of documents. Reviewing the defendant’s invoices, the court found that
expenses for “intelligent culling,” “tech time,” and “processing services” were not recoverable and
reduced the defendant’s request for $447,694.63 in e-discovery costs to $2,721.53. Finally, the
court noted that the bulk of the defendant’s invoices were deficiently itemized, and allowed it to
submit more detailed invoices within 30 days to attempt to recover more of its e-discovery costs.
� Genger v. TR Investors, LLC, 2011 WL 2802832 (Del. Supr. July 18, 2011). In this shareholder
litigation, the defendant (an "international man of mystery") sought review of the Court of
Chancery’s judgment including, its award of $3.2 million in attorney fees and costs for the
spoliation of ESI in violation of a preservation order. On appeal, the defendant argued the
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