Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

was not equitable to force the defendant to pay for the electronic organization of the opposing
party’s database.
� In re Instinet Group, Inc. Shareholders Litig., 2005 WL 3501708 (Del. Ch. Dec. 14, 2005).
Following the settlement of a class action shareholder lawsuit, the plaintiffs sought $1,450,000 in
fees and more than $173,000 in costs. Although recognizing the plaintiffs were entitled to some
fees and expenses, the defendants objected to the amount requested based on the plaintiffs’
attorneys’ inefficiency in managing the discovery process. In considering the award, the court
noted that prior to settlement, the plaintiffs obtained several hundred thousand pages of discovery
documents and devoted a substantial amount of time to document review. The court issued a total
award of $450,000, stating “the obvious inefficiencies involved in this case, highlighted by the
plaintiffs’ decision to pay nearly $125,000 to convert documents produced in a digital format into a
paper format. Rather than simply copying the electronic media to permit the plaintiffs’ lawyers
working on the case to search and review the document production on a computer screen, the
plaintiffs spewed the digital production onto paper and, then, copied the paper for review. This
approach both added unnecessary expense and greatly increased the number of hours required to
search and review the document production. In fact, the time records submitted include a large
number of hours, by multiple attorneys, spent reviewing the documents. Thus, the court must
disagree with the plaintiffs’ counsel’s assertion that ‘this case was a paradigm of efficient litigation,’
and give less weight than customary to the number of hours expended by plaintiffs’ counsel.”
� Fenster Family Patent Holdings, Inc. v. Siemens Med. Solutions USA, Inc., 2005 WL 2304190
(D.Del. Sept. 20, 2005). In a patent infringement suit, the plaintiffs renewed a motion to compel the
defendants to provide them with access to a corporate Intranet portal. The court had previously
denied the motion relying on the defendant’s representation that it would produce the requested
data in a searchable electronic format. In their renewed motion, the plaintiffs declared the
defendants did not follow through with this representation because they produced some of the
documents in hard copy format, requiring document-by-document review of over one million pages
without the benefit of electronic searching. Additionally, the plaintiffs claimed the defendants
produced other large batches of documents in a non-searchable electronic format. The plaintiffs
further alleged certain documents had not been produced, constituting new evidence in support of
the plaintiffs’ motion. In response, the defendants declared they had fulfilled their obligations under
the Federal Rules of Civil Procedure by producing older documents, available only on microfilm, in
the format in which they were maintained. The defendants also stated they would produce the
specific documents previously identified by the plaintiffs as non-searchable in "searchable form." In
denying the plaintiff’s motion, the court found the plaintiff failed to demonstrate “an intervening
change in controlling law, the availability of new evidence that was not available when the Court
issued its first Order, or the need to correct a clear error of law or fact to prevent a manifest
injustice.”
� TIG Ins. Co. v. Premier Parks, Inc., 2005 WL 468300 (Del. Super. Ct. Mar. 1, 2005). The
defendants sought information about other litigation in which the plaintiff was involved where
exposure was estimated to be worth more than $250,000. The plaintiff objected to the defendants’
request as “extremely burdensome,” arguing it would require the plaintiff to gather 50,000 computer
files scattered around the country. Attempting to form a compromise and limit the burden, the court
ordered the plaintiff to produce only discovery relating to class action suits during the last five
years. As it did not have the means to search the files electronically based on class action status,
the plaintiff began a manual review of its litigation database. After engaging in a lengthy review and
incurring significant expense, the plaintiff requested permission to search only the files containing
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