Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

� TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009). In this stockholders
litigation, the plaintiffs sought default judgment sanctions, citing the defendant’s destruction of
electronic evidence in violation of a court order. The plaintiffs asserted that, following review and
encryption of electronic evidence by a third-party firm, the defendant used wiping software to
permanently delete temporary files in the unallocated space not reviewed by the neutral party for
relevance. The defendant, an "international man of mystery" who performed sensitive tasks for the
Israeli government and was concerned about the confidentiality of personal documents, claimed
that he believed the wiping software only deleted duplicate copies. Finding the use of wiping
software to be a clear violation of the unambiguous court order, the court determined sanctions
were appropriate. The court declined to impose a default judgment and held the defendant in
contempt, ordering him to pay $750,000 in attorneys’ fees and costs. The court also ordered
production of documents previously subject to a claim of privilege, elevated the defendant’s
required burden of persuasion on any counterclaims or defenses, and prohibited the defendant
from prevailing on any material matter based solely on his uncorroborated testimony.
� In re Global Power Equip. Group, Inc., 2009 WL 3464212 (Bkrtcy.D. Del. Oct. 28, 2009). In this
bankruptcy proceeding, the debtors filed a motion to compel the claimants, a Dutch corporation,
and its agent entity, a French corporation, to comply with discovery requests under the Federal
Rules of Civil Procedure (FRCP). The claimants argued the French Blocking Statute prescribes
sanctions for any French corporation that "engages in the discovery process of a foreign judicial
proceeding without using the procedures established under the Hague Evidence Convention."
According to a U.S. Supreme Court case, when a court is asked to use the Hague Evidence
Convention procedures, it must conduct a "comity analysis" to determine whether the FRCP or the
Hague Procedures apply. The "comity analysis" requires consideration of five factors: the
importance of documents, degree of specificity of the request, whether information originated in the
United States, availability of alternative means and the effect of noncompliance on interests of the
United States or the state where the information is located. Concluding the chance of prosecution
under the French Blocking Statute to be minimal, the court determined the factors weigh in favor of
using the FRCP to govern discovery in this case.
� Lluerma v. Owens Ill. Inc., 2009 WL 1638629 (Del. Super. June 11, 2009). In this toxic tort action
brought by the plaintiffs (Spanish citizens who worked abroad on U.S. warships), the defendant
filed a motion to dismiss based on forum non conveniens grounds. Among the defendant’s
contentions for Spain as the proper forum was that the alleged injury occurred in Spanish territory,
most of the discovery was located in Spain and that Spain had advised the Hague Conference that
it would not grant requests for pretrial discovery of documents. The plaintiffs countered that Spain
was not an adequate forum as many of the defendant’s employees and corporate records were in
Delaware or were easily accessible to the defendant’s Delaware counsel. Recognizing there were
burdens to the defendant’s procurement of evidence in Spain, the court nonetheless found that the
defendant did not establish either an overwhelming hardship or the complete inability to procure
discovery in Delaware and thus denied the defendant’s motion.
� Beard Research, Inc. v. Kates, 2009 WL 1515625 (Del.Ch. May 29, 2009). In this tortious
interference with business relations litigation, the plaintiffs sought spoliation sanctions claiming a
computer was irretrievably altered after the defendants’ preservation duty arose. Specifically, the
plaintiffs alleged the repeated reformatting of a personal computer and the loss of a hard drive
caused the destruction of relevant incriminating e-mails and a presentation. The defendants argued
there was no obligation to preserve one of the defendant’s computers since there was no request
for it. Finding this "mistaken view" let the defendants "off the hook too easily," the court determined
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