Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

their attorney logged the e-mails as privileged, if not earlier. Upholding the $5,502 award of
attorneys’ fees and costs, the court stated that to allow the defendant or his counsel to destroy or
carelessly lose the e-mails thereafter would make a “mockery” of the state’s discovery rules.
� I-Med Pharma, Inc. v. Biomatrix, Inc., 2011 WL 6140658 (D.N.J. Dec. 9, 2011). In this breach of
contract litigation, the defendants appealed an order allowing the plaintiff to withhold millions of
files obtained in a search of unallocated data, claiming the magistrate judge abused discretion on
the matter. According to the parties’ stipulation, an expert conducted a 50-phrase keyword search
of the plaintiff’s computer networks and storage devices that was not limited to particular document
custodians, data sets, or relevant time periods. Accordingly, the search produced over 95 million
hits—64 million of which were in unallocated space. A magistrate judge found inadequate
relevance to justify the burdensome review of the files from the unallocated space and modified the
plaintiff’s production order to include only active data. Deferring to the magistrate judge’s
discretion, the district judge found that the parties should have "exercised greater diligence before
stipulating to such broad search terms," but nonetheless found it unreasonable to order the costly
production of 64 million documents bearing little likelihood of relevance or non-duplicative files.
� Katiroll Co., Inc. v. Kati Roll and Platters, Inc., 2011 WL 3583408 (D.N.J. Aug. 3, 2011). In this
trademark infringement litigation, the plaintiff sought spoliation sanctions citing the defendants’
alleged series of discovery abuses, including the failure to preserve Facebook pages in their
"original state." Citing the split within the Third Circuit regarding culpability, the court applied the
"best rule" in determining whether sanctions were warranted: "Where there is substantial prejudice
to the opposing party, negligence may be sufficient to warrant a spoliation inference. Where there
is minimal prejudice to the opposing party, intentional conduct is required." Applying this standard,
the court determined the sanctions would be unjust because the spoliation was in response to the
plaintiff’s request that the image be removed. However, the court determined the loss of the
Facebook data at issue was somewhat prejudicial and ordered an individual defendant to re-post
the previous profile picture to allow the plaintiff to print any posts it felt were relevant.
� United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010). In this federal criminal
prosecution, the defendants sought sanctions citing the Government’s failure to produce text
messages sent between a cooperating witness and FBI agents, who had deleted the messages
from their cell phones to free memory. According to its Corporate Policy Directive, the FBI retained
log server data and data on backup tapes for only 90 days and was unable to produce the text
messages despite keyword and manual searches. Before discussing the alleged spoliation, the
court deemed the messages discoverable statements under the Jencks Act. The court then found
no reasonable explanation as to why the Government delayed imposing a litigation hold until three
months after it began searching for the text messages, nor as to why only some messages were
deleted. Thus the court determined the Government violated its duty to preserve relevant data that
was in its control during an ongoing investigation specifically aimed at prosecution. Citing the
relative lack of criminal law in the Third Circuit regarding spoliation sanctions, the court relied on
civil case law – including Pension Committee – and held the missing evidence was prejudicial and
of “paramount importance.” Due to the absence of bad faith, the court issued a permissive adverse
inference instruction.
� Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010). In this racial
discrimination litigation, the plaintiffs appealed the magistrate judge’s discovery ruling. The
magistrate judge granted a protective order for the defendants’ backup tapes based on several
factors, including the $1.5 million cost of tape restoration and the lack of evidence regarding the
defendants’ culpability as to why the e-mails were now inaccessible. The plaintiffs argued the
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