Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

should rely on IT professionals to create a protocol that was easily understood. After the
defendants proposed a highly technical search protocol, the court decided to create one of its own
that included: search parameters and locations, time limits and a requirement that the defendants
must restore newly discovered ESI.
� United States v. O’Keefe, 2008 WL 3850658 (D.D.C. Aug. 19, 2008). In this criminal prosecution,
the co-defendant sought further discovery, including Department of State e-mails, communications
memoranda and post indictment analyses. The government refused to provide this information
arguing the requested documents would necessarily result in work product disclosure and not be
discoverable. Finding defendant’s response equivocal, Magistrate Judge John M. Facciola ordered
the government to search for documents that fall within the discovery request and to produce them.
Citing Rule 26(b)(5) of the Fed.R.Civ.P., Judge Facciola required the government to create a
privilege log of documents withheld from production, explicitly describing documents so as to
prevent the necessity of in camera review. See also United States v. O’Keefe, 2008 WL 449729
(D.D.C. Feb. 18, 2008).
� Citizens for Responsibility and Ethics in Wash. v. Executive Office of the President, 2008 WL
2932173 (D.D.C. July 29, 2008). In this ongoing litigation alleging improper deletion of White
House e-mails, the plaintiffs sought an order requiring the defendants to recover and restore
certain electronic communications created and/or received within the White House. Previously,
Magistrate Judge John M. Facciola recommended the Court order the defendants to search the
workstations of employees during the time period at issue and issue a preservation notice directing
them to surrender media that may contain relevant e-mails. In the dispute at hand, the defendants
sought reconsideration, arguing all relevant e-mail was preserved on backup tapes. Finding the
defendants’ argument to be “fundamentally flawed,” the Magistrate Judge denied the motion for
reconsideration, pointing out that e-mail present in a personal folder on an employee’s work station
is not necessarily on the backup tape. However, as the defendants failed to keep track of which
hard drives were used by which individuals, the Magistrate determined that the burdens imposed
on the defendants to preserve all 545 workstations was too great, and therefore recommended no
further relief beyond his previous recommendation.
� Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008). In this ongoing contract dispute, the
court followed up on its previous holding that it was appropriate to ascertain the cost of a forensic
examination to determine if the cost was justified. After the previous ruling, both parties submitted a
joint bid resulting in a vendor proposal of $33,000. Determining the forensic examination to be
justified, the court considered whether the burden or expense justified a shift of cost to the
requesting party. Finding the defendant’s inadequate search efforts, failure to preserve
electronically stored information and overall unwillingness to take “discovery obligations seriously”
caused the need for a forensic examination, the court refused to shift costs since the problem was
one of the defendant’s “own making.”
� Pederson v. Preston, 2008 WL 2358589 (D.D.C. June 11, 2008). In this employment
discrimination litigation, the plaintiff filed a motion to compel discovery arguing that the defendant’s
responses to a number of interrogatories were insufficient and the defendant improperly asserted
attorney-client privilege. The defendant objected arguing that the plaintiff’s production requests
were vague, overly broad, unduly burdensome and not reasonably calculated to lead to the
discovery of admissible evidence. The defendant also defended its assertion of attorney-client and
work-product privilege by noting that the plaintiff had not specifically objected to any claim of
privilege provided in the defendant’s privilege log. After analyzing each disputed interrogatory for
relevancy and undue burden, the court granted the motion in part and denied in part. The court
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