Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

metadata, the court referenced the Sedona Conference and multiple court decisions and found that
the defendants’ “blanket statement” of objections failed to show undue burden. As a result, the
court ordered production of metadata with respect to documents that have not already been
produced, finding the information will provide the plaintiffs with crucial information and permit them
to engage in a more meaningful search. The court then denied disclosure of the defendants’
search methodology, but ordered the parties to meet and confer to reach an agreement on search
terms, custodians, date ranges and other essential details. Finally, the court refused to order a
certification of the defendants’ document retention policies absent sufficient evidence of spoliation.
� McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson Sept. 9, 2010). In
this personal injury litigation, the defendants sought production of the user names, log-in names
and passwords granting access to the plaintiff’s Facebook and MySpace accounts. Having found
comments on the public portions of the plaintiff’s social media sites indicated the plaintiff
exaggerated his injuries, the defendants argued that private portions might similarly contain
impeaching content. Objecting, the plaintiff contended that communications shared among private
friends on social network sites are confidential and thus protected against disclosure. Equating the
plaintiff’s argument with a request for a new “social network site privilege,” the court expressed
concern that recognizing such a privilege would contravene the purpose and policy of
Pennsylvania’s broad discovery rules. Thus, finding no reasonable expectation of confidentiality
given the clear language contained on both sites regarding the possibility of disclosure, no
subjective or objective relational need for privilege outside of attorney-client communications and a
failure to outweigh the interests of justice, the court ordered the plaintiff to preserve existing
information and provide his Facebook and MySpace user names and passwords to the defendants’
counsel.
� Universal Delaware, Inc. v. Comdata Corp., 2010 WL 2330284 (E.D.Pa. June 4, 2010). In this
antitrust litigation, one of the defendants requested a protective order shielding itself and a nonparty
from complying with a subpoena served upon the non-party, arguing it was "harassing" and
an "unwarranted fishing expedition" that improperly sought production of irrelevant and proprietary
information. The defendant also argued the subpoena was unduly burdensome as it would require
collecting, reviewing and producing data from 38 total custodians who possessed approximately
1,017 gigabytes each. The court denied the defendant’s undue burden argument, citing the likely
overlap of custodians, existence of tools designed to reduce the burden of reviewing ESI, feasibility
of adding search terms, exaggerated page counts and the defendant’s failure to argue that ESI
was not reasonably accessible. The court also found the language of a prior governing protective
order sufficient to protect information disclosed, especially since the disclosures would be to the
plaintiffs and not the co-defendants who are the defendant’s competitors.
� Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 WL 2104639 (W.D.Pa. May 24, 2010). In this
FLSA collective action, the plaintiffs sought discovery and sanctions based on the defendants’
alleged incomplete production and excessive deadline extensions. Despite noting it was "not
entirely unsympathetic" to the defendants’ difficulties based on the complexity of the litigation, the
court found the time for "don’t worry, we’ll get it to you" had passed, especially given the original
discovery deadline of November 2009. The court was not impressed with the defendants’
statement that they produced "over 21,000 documents" and granted the plaintiffs’ production
requests where appropriate. The court ordered the parties to meet and confer to discuss the
production of ESI, consistent with its rulings that electronic files must be produced in a
"searchable" format and the defendants must supplement production by reproducing ESI in native
format, with metadata, seeking technical expertise and assistance when necessary. Finally, the
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