Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

evidence in addition to the significant time lapse that occurred between the duty to preserve and
the issuance of the first litigation hold letter. Accordingly, the court granted the plaintiffs’ production
request, limiting it to those portions of the letters pertaining to preservation.
� Stengart v. Loving Care Agency, Inc., 2009 WL 1811064 (N.J. Super. A.D. June 26, 2009). In
this ongoing discrimination litigation, the plaintiff appealed the lower court’s denial of her motion to
require the defendant to return all e-mail copies sent by her to her attorneys on work-issued
laptops through her personal, web-based e-mail account. The defendant alleged its electronic
communications policy mandated the conversion of e-mails and other Internet use and
communication into company business records. The plaintiff maintained that the defendant had
never officially adopted the policy or enforced it. The court noted the lack of certainty about the
exact meaning and scope of the policy’s language created by multiple versions of the policy and
stated that any company policy must reasonably relate to a legitimate business interest. Balancing
the enforceability of the company’s policy with the delicacy of attorney-client privilege, the court
determined the policy must give way. Thus, the court reversed the lower court’s decision and
concluded the e-mails sent over the plaintiff’s personal Yahoo! account remained privilege
protected. The court also remanded the case to determine whether the defendant’s counsel should
be disqualified from further representation.
� Ford Motor Co. v. Edgewood Properties, Inc., 2009 WL 1416223 (D.N.J. May 19, 2009). In this
environmental litigation, the defendant moved for re-production in native format of the plaintiffs’
entire ESI production previously produced in TIFF format and for a keyword search by a forensic
expert to confirm the adequacy of the plaintiffs’ manual document collection process. The plaintiffs
had demanded native production in their initial document request and argued the keyword search
was appropriate to confirm the adequacy of the defendant’s collection, as certain documents were
noticeably absent from production. The court denied the defendant’s motion for re-production,
finding the defendant waived its objection to production format by failing to make a timely objection;
the defendant waited eight months to first object to the requested production format and an
additional two months before bringing the matter to the court’s attention. Turning to the second
motion, the court found that the defendant had not made a colorable showing that documents had
been withheld because of inadequate collection. The court accordingly held that it would not grant
the burdensome discovery requested based on "nefarious speculation" of missing documents this
"late in the game."
� Opperman v. Allstate New Jersey Ins. Co., 2008 WL 5071044 (D.N.J. Nov. 24, 2008). In this
class action lawsuit, the plaintiffs sought production of third-party owned proprietary software
licensed and used by the defendants. The plaintiffs claimed they needed unfettered access to the
software to determine how the defendants determine property loss adjustments and if the supply
prices were manipulated or altered. The defendant and third-party opposed this request, claiming
all relevant evidence was previously produced; less intrusive means were not exhausted; and
unfettered access was not necessary. Finding the software relevant and necessary to the plaintiffs’
claims, the magistrate judge ordered the defendant to produce the software in an accessible form.
Additionally, to circumvent the potential harm of allowing discovery of the third-party trade secret,
the court entered a Discovery Confidentiality Order, limiting access and use of the software.
� Arteria Prop., Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008). In
this litigation involving a long-term loan, the plaintiff sought an adverse inference based on the
alleged lack of production and spoliation of two types of documents: a highly relevant letter and
information relating to the defendants’ website as it existed at the time this dispute arose.
Determining the defendants were in control of the relevant missing letter, the court found sanctions
88