Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

appropriate. The court refused to make a culpability determination, finding that an adverse
inference was warranted regardless of whether a negligence or bad faith standard applied.
Regarding the website, the court treated it as any other electronic file, finding the defendants had
the ultimate authority and control over it. Based on this willful destruction or withholding of
evidence, the court also imposed an adverse inference regarding the website, granting the
plaintiff’s motion in full.
� Wong v. Thomas, 2008 WL 4224923 (D.N.J. Sept. 10, 2008). In this wrongful termination
litigation, the plaintiff sought sanctions for spoliation of evidence. Previously, the plaintiff sought all
e-mail communications between the plaintiff and the defendants and claimed such information was
integral to her ability to corroborate and establish her claims. The defendants claimed all electronic
documents were destroyed as part of its routine practice of closing e-mail accounts and deleting
files from the office computers of departing employees. The defendant then employed outside
vendors to recover the sought after e-mail. After reviewing eighteen boxes of recovered e-mail, the
defendant was unable to find any information relevant to the present litigation. The court found the
defendants acted in good faith in their recovery and review efforts, but still considered whether
sanctions were appropriate. Finding plaintiff’s vague request for e-mails as a failure to identify the
possible information contained therein, the court determined that the plaintiff did not demonstrate
the relevancy and denied the plaintiff’s motion.
� Wachtel v. Health Net, Inc., 2007 WL 1101436 (D.N.J. Apr. 10, 2007). In this class action suit, the
defendants sought a stay of two orders pending resolution of a mandamus petition before the Third
Circuit Court of Appeals. Specifically, the defendants had been ordered multiple times over the last
few years to produce certain electronic documents. The defendants argued that the production of
the electronic data required them to restore and search through billions of e-mails by thousands of
employees at great cost. The court disagreed with the defendants and ordered production of the
documents. The court found that this was “yet another attempt by [the d]efendants to avoid
discovery obligations that they have been ordered to comply with for years.” The requested
documents were not exceptional, and the court found it hard to believe that the documents were
not stored in one central storage area. Furthermore, the defendants never objected to production of
the documents when initially ordered and never provided evidence to the court to prove the burden
of the search and retrieval effort.
� Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. Jan. 31, 2007).
During a discovery dispute in a patent infringement case, the plaintiff alleged that it inadvertently
produced over 500 privileged e-mails and moved for their return. During document review, the emails
were identified as privileged, deleted from the Lotus Notes DVD, and submitted to the
plaintiff’s outside e-discovery vendor for final production processing. Because of the nature of the
Lotus Notes application, the plaintiff claimed the privileged e-mails unknowingly remained in a
larger subfolder which the vendor processed and were ultimately produced to the defendant. In an
earlier decision on this matter, the magistrate judge ordered that the privileged documents be
returned because the plaintiff had not waived any privilege. The magistrate reasoned that the
privileged e-mails were embedded in metadata and that the privileged information was “not
apparent on the face of the documents.” Therefore, the magistrate found that the defendant should
have reasonably known that the retrieved e-mails were not intended for disclosure. The defendant
objected to the magistrate’s ruling and appealed to the district court judge. The district court judge
reviewed the magistrate’s decision de novo and found that the magistrate based his conclusion on
a misunderstanding of fact, because the magistrate ruled that the plaintiff was unable to detect the
error before production. However, in its briefings before the district judge, the plaintiff admitted that
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