Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

the inadvertent production of privileged documents was, in fact, apparent on the face of the
documents because they had been Bates numbered and stamped as confidential. Since the
magistrate based his decision upon a critical misunderstanding of this fact, the district court judge
remanded the case to the magistrate for a reassessment of whether the plaintiff preserved the
privilege and was thus entitled to their return. In addition, the district judge evaluated whether the
plaintiff waived its privilege by producing 37 non-Lotus Notes documents that were marked as
“unreadable” during document review. Affirming the magistrate’s ruling that privilege had been
waived, the court stated “[T]urning over unintelligible or unreadable documents to an adversary
evidences a lack of reasonable precaution . . . .”
� Wachtel v. Health Net, Inc., 2006 WL 3538935 (D.N.J. Dec. 6, 2006). In a class action suit, the
plaintiffs sought sanctions, including default judgment, against the defendant for failure to retain,
search and produce e-mail and other electronic documents. Several discovery orders had been
issued over the last five years compelling the defendant to produce electronic records, with which
the defendant failed to comply. Eventually, approximately 20,000 previously undisclosed
documents were produced by the defendant after several years of discovery orders. The defendant
also failed to search backup tapes for e-mail and failed to properly preserve any other e-mail during
litigation. The defendant had an automated e-mail deletion program but failed to alter the program
or search for any deleted e-mail on backup tapes until three years into litigation. The court held that
it would not issue a default judgment as a sanction despite the defendant’s illicit bad faith in
discovery. However, the court allowed monetary penalties, adverse inferences, and payment of
plaintiff’s costs as sanctions.
� Durst v. FedEx Express, 2006 WL 1541027 (D.N.J. June 2, 2006). In an employment termination
dispute, the plaintiff filed a motion in limine, seeking an adverse inference jury instruction stating
the defendant had destroyed or failed to maintain relevant evidence that would have been
damaging to the defendant’s case. The plaintiff sought the spoliation inference after the defendant
had failed to produce key accident reports, vehicle inspection records and emails as demanded by
the plaintiff. In response, the defendant denied having agreed to provide the requested documents
and asserted the magistrate judge had never ordered production. Refusing to grant the plaintiff’s
motion, the district court observed that the plaintiff had never raised the issue during the discovery
conference, informed the judge, or brought a motion to compel production of the allegedly
destroyed documents. In addition, the district court noted that four essential factors are required for
a spoliation inference, “(1) that the "evidence in question [is] under the adverse party’s control;" (2)
"that there has been an actual suppression of this evidence, i.e., that [the evidence at issue] was
intentionally untimely disclosed;" (3) that "the untimely disclosed evidence was relevant" to the
plaintiff’s case; and (4) "that it was reasonably foreseeable that [the spoliated evidence] would later
be discoverable." The district court determined that the plaintiff had failed to demonstrate the
requested documents were relevant, in the defendant’s possession, or even existed.
� Kaufman v. SunGard Inv. Sys., 2006 WL 1307882 (D.N.J. May 10, 2006). In a case involving
breach of contract claims, the court affirmed the magistrate judge’s order declaring that certain email
exchanges between the plaintiffs and their counsel were discoverable and not protected by
attorney-client privilege. Following plaintiff’s termination of employment, the defendant recovered
deleted e-mail exchanges on two company–owned laptops. The court found that the plaintiffs
waived privilege claims as to emails sent prior to the defendant’s acquisition of the plaintiffs’
business because the plaintiffs had not taken steps to “protect or segregate” those emails from the
defendant’s systems. As to other emails sent and received after the acquisition, the court found
that because the plaintiffs had received notice of the defendant’s e-mail monitoring policy, the
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