Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

defendants failed to preserve and disclose discoverable e-mail evidence. Challenging the plaintiff’s
motion, the defendants pointed out that their own discovery request expressly included e-mails and
claimed the plaintiff did not specifically include e-mail in its definition of “document” during
discovery. The defendants also argued that the plaintiff did not demonstrate it was prejudiced as a
result of not receiving the e-mails. The court rejected the defendants’ arguments stating that the
defendants “knew, or should have known, those e-mails were discoverable, given their heavy
reliance on e-mails obtained from plaintiff during discovery, not to mention the obvious realities of
modern litigation…the fact that UnoU technical e-mails were preserved…demonstrates, at the
least, extremely reckless behavior.” In an order following the July opinion, the judge issued
$566,838 in sanctions against the defendants as well as an adverse inference instruction for
spoliation of e-mail evidence. Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595 (D.N.J.
2004). See also Mosaid Techs. Inc. v. Samsung Elecs. 2004 WL 2550309 (D.N.J. Oct. 1, 2004)
and Mosaid Techs. Inc. v. Samsung Elecs. 348 F.Supp.2d 332 (D.N.J. 2004) (both affirming
sanctions awards).
� In re Bristol-Myers Squibb Securities Litigation, 2002 WL 169201 (D.N.J. Feb. 4, 2002). The
court modified the plaintiff’s original discovery cost commitment where the defendants "dumped" an
extraordinary number of paper documents resulting in a prohibitive copying charge. The court also
denied the defendant’s motion for plaintiff’s one-half cost contribution for document scanning costs,
but instead required plaintiff to pay only for the nominal cost of copying compact discs. The court
reiterated the importance of a Rule 26(f) conference to discuss electronic discovery issues,
including the fair and economical allocation of costs.
� White v. White, 781 A.2d 85 (N.J. Super. Ct. Ch. Div. 2001). In a divorce action, the husband filed
a motion to suppress his e-mail that had been stored on the hard drive of the family computer. The
court held that the wife did not unlawfully access stored electronic communications in violation of
the New Jersey Wiretap Act and did not intrude on his seclusion by accessing those e-mails.
“Having a legitimate reason for being in the files, plaintiff had a right to seize evidence she believed
indicated her husband was being unfaithful….Is rummaging through files in a computer hard drive
any different than rummaging through files in an unlocked file cabinet . . . ? Not really.”
� In re Prudential Ins. Co. Sale Practices Litig., 169 F.R.D. 598 (D.N.J. 1997). Life insurer’s
consistent pattern of failing to prevent unauthorized document destruction in violation of a court
order, in a suit alleging deceptive sales practices, warranted sanctions requiring payment of $1
million to court and payment of some plaintiff’s attorney fees and costs.
� Ciba-Geigy Corp. v. Sandoz, Ltd., 916 F. Supp. 404 (D.N.J. 1995). The defendants produced all
documents from database without conducting a privilege review. The court held that privilege is
waived where the disclosure is a result of “gross negligence.”
Pennsylvania
� Patel v. Havana Bar, Restaurant and Catering, 2011 WL 6029983 (E.D.Pa. Dec. 5, 2011). In this
discovery dispute, each party cross-motioned for sanctions citing discovery misconduct. At issue in
the litigation was whether the plaintiff fell or jumped from a two-story balcony, as well as how
intoxicated the plaintiff was at the time of injury. The plaintiff asserted that defendants spoliated
evidence when they failed to preserve security tapes before they were routinely erased three
weeks later. Conversely, the defendants contended that the plaintiff, through his sister-in-law,
"spoon-fed friendly witness testimony" by soliciting testimony via Facebook and e-mail—many of
which were allegedly "lost" when the defendant requested them from the plaintiff late in discovery.
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