Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

court denied sanctions, but issued the defendants a "wake-up call" to "tighten up their discovery
practices." The court emphatically directed opposing counsel to act reasonably and in good faith,
working through "disagreements amicably whenever possible" as the court "has neither the time
nor the resources to resolve every discovery agreement that surfaces in this or any other case."
� Universal Del., Inc. v. Comdata Corp., 2010 WL 1381225 (E.D.Pa. Mar 31, 2010). In this
discovery dispute, the plaintiffs sought third-party compliance to the subpoena requesting
production of responsive ESI, without requiring the plaintiffs to provide compensation for applicable
attorneys’ fees. According to the plaintiffs, the third party had an “interest in the outcome of the
litigation” and therefore was not entitled to reimbursements for production and review costs of
discovery material. The court determined that as a result of the potentially large costs of
production, the third party had met its burden of proof in showing that the ESI was not reasonably
accessible and that the information was in marginally accessible media form (backup tapes).
Based on the recommendations of an electronic evidence consultant, the court ordered the
requested information be imaged and produced for the plaintiffs in a separate searchable
database. Citing the seven-factor cost-shifting test set forth in Zubulake I, the court ordered the
database creation costs be evenly distributed between the plaintiffs and the third party based on
the inaccessible format of the information.
� Adhi v. Twp. of W. Pikeland, 2010 WL 1047894 (E.D.Pa. Mar. 16, 2010). In this property and
zoning litigation, the defendant sought enforcement of a pre-existing court order and production of
additional e-mails. The plaintiff contended that if additional e-mails ever existed, they were deleted
in the good faith ordinary course of business and therefore could not be produced. In response, the
defendant argued that the “mere deletion of an e-mail does not make it lost forever” and requested
retrieval of the ESI through the use of an e-discovery specialist. Relying on the plaintiff’s failure to
deny that additional e-mails may have existed, the court ordered the plaintiff to allow the
defendant’s e-discovery expert to inspect the plaintiff’s computers for responsive information.
Additionally, because the court further concluded there was no substantial justification for the
plaintiff’s discovery failure, the defendant was entitled reasonable expenses associated with filing
and attorney’s fees as a sanction.
� Phillips v. Potter, 2009 WL 1362049 (W.D.Pa. May 14, 2009). In this sexual discrimination case,
the plaintiff filed a motion for sanctions based on the defendant’s failure to preserve electronically
stored information; the defendant admitted that a litigation hold was not put into place after litigation
became foreseeable and that e-mails were destroyed by an automatic deletion system as a result.
The defendant argued that sanctions are nevertheless not appropriate because the e-mails
destroyed were not relevant. The court agreed with the defendant that there was no evidence of
destruction of relevant documents and refused to order sanctions arising out of "mere speculation"
that relevant documents were destroyed, noting also that there was no indication of any bad intent
on the part of the defendant.
� Hohider v. United Parcel Serv., Inc., 2009 WL 1163931 (W.D.Pa. Apr. 28, 2009). In this litigation,
the defendant filed an emergency motion to stay the court’s order requiring in camera review of
alleged work product documents withheld by the defendant. Noting it was "very troubled by
defendant’s efforts to delay or stop the court’s resolution" of the defendant’s potential preservation
failures, the court determined an in camera review was necessary. The court was also troubled by
the defendant’s request to the court of appeals to stay the special master’s investigative actions
and believed this action raised suspicions about the defendant’s motives. Accordingly, the court
denied the defendant’s motion and directed the special master to submit his report and
recommendation regarding the privilege assertions. The court also noted that an argument against
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