Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

plaintiffs waived any privilege claims by utilizing the defendant’s e-mail system to send and receive
those communications.
� Wachtel v. Guardian Life Ins. Co., 2006 WL 1286189 (D.N.J. May 8, 2006). In this opinion, the
court addressed plaintiff’s motion to compel the production of certain documents being withheld by
the defendants. While the defendants maintained that the documents were protected by attorneyclient
privilege, the plaintiff asserted that the documents were discoverable under the crime-fraud
exception. The court considered evidence that the defendants had used their counsel to delay
discovery and make false representations to the court, while failing to preserve relevant e-mail
evidence. The court found these facts sufficient to support a prima facie showing that in camera
review of the materials might establish whether the crime-fraud exception applied. The court also
upheld the magistrate judge’s adverse inference sanction regarding deleted emails, and
denounced the defendants use of deceptive discovery tactics and willful disregard for court orders.
Responding to the defendants’ appeal of the magistrate’s discovery order, the court observed,
“[h]ad candid disclosures to the [m]agistrate [j]udge occurred, an appropriate order could have
been tailored to deal with these issues and keep costs down. The huge costs now being
complained of could have been minimized by timely compliance when the e-mails were more
current. The defendants were ordered to produce emails stored on backup tapes as they had been
previously instructed to do by the magistrate.
� Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. 2005). On behalf of her minor daughter, the
plaintiff sued her husband’s employer after her husband used his work computer to send pictures
of the daughter to an Internet pornography site. Granting the employer’s motion for summary
judgment, the lower court determined the employer did not have a duty to monitor the employee’s
Internet activities. On appeal, the court reversed and declared the employer had a duty to use
reasonable care to prevent the employee from accessing child pornography sites on his work
computer. The appellate court noted the employer was on notice the employee was viewing child
pornography and the employer had the capability to monitor the employee’s activities on his work
computer. In addressing potential privacy concerns, the appellate court determined the employee
had no legitimate expectation of privacy that would prevent the employer from accessing the
computer to determine if he was using it to view adult or child pornography. The court held that if
the employer failed to exercise reasonable care – by failing to terminate the employee or by failing
to report his activities to law enforcement – the employer could be liable to a third party for resulting
harm. The court remanded the case for a summary judgment determination on the issues of
causation and harm.
� Commodity Futures Trading Com’n. v. Equity Fin. Group, LLC., 2005 WL 2205789 (D.N.J.
Sept. 9, 2005). The plaintiff sought a computer backup tape containing data from two desktop and
one laptop computers located in defendant Abernethy’s home office. Abernethy was an employee
of another named defendant, Sterling. The plaintiff alleged the tape was necessary because
relevant electronic evidence may have been altered or destroyed and the tape "may contain the
only remaining copy of that evidence." The plaintiff stated it needed the tape in order to compare
the files on the backup tape to the original files on the computers. Objecting to the production,
defendant Sterling argued the tape was a backup of a Sterling computer making it Sterling’s
property and not Abernethy’s property. Sterling also argued the plaintiff already had the documents
on the tape, the tape was not subject to a previously issued consent order, and the files on the tape
contained proprietary information that could not be produced. Rejecting these arguments, the court
ordered production of the tape, concluding the tape was Abernethy’s property and not Sterling’s
property. The court also refused to accept Sterling’s argument that the plaintiff had already
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