Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

equire the non-party to allow the plaintiff, a competitor, to “thumb through an electronic file drawer”
to double-check document review for relevance. However, the court found evidence of an
understanding that the plaintiff would receive a written vendor report and allowed the plaintiff the
option to seek the report at its own expense.
� United States v. Crist, 2008 WL 4682806 (M.D.Pa. Oct. 22, 2008). In this criminal action, the
defendant filed a motion to suppress evidence recovered from his computer, claiming its search
was warrantless, in violation of his Fourth Amendment rights. The defendant did not consent to the
search of his computer; rather he reported it stolen upon learning that it was given away. However,
upon receipt, the forensic examiner hashed the drive then took a forensic image. Then, the
examiner hashed the image, later comparing the hash value to files known to contain pornographic
images. The court determined that subjecting the computer to a hash value analysis constituted a
search, reasoning that instead of the hard drive being analogous to an individual item, it constitutes
multiple items as it is comprised of many platters with multiple data storage units. The court
accordingly granted the defendant’s motion to suppress the evidence obtained from the forensic
search of his computer.
� Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 2008 WL
4291319 (Pa.Super. Sept. 22, 2008). In this breach of contract case, inter alia, the defendants
appealed the trial court’s order requiring the production of two of the defendants’ “broken”
computers. The defendants argued against production, claiming the computers may contain
privileged documents. In response the plaintiffs argued the defendants previously agreed to
produce the computers at trial. Disagreeing with the defendants, the court held the privilege was
waived as a result of the defendants’ prior agreement to produce the computers.
� Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D.Pa. July 21, 2008). In this civil
rights case, the plaintiffs requested production of e-mail stored on backup tapes. The defendants
objected, arguing the request was unduly burdensome and unlikely to produce relevant material. In
response to a previous court order, the defendant provided an estimate that the search’s cost
would be a minimum of $10,000. The court analyzed the factors laid out in Fed.R.Civ.P. 26(b)(2)
and cited three factors that weighed against requiring production: (1) the burden and expense of
the proposed discovery outweighed its likely benefit; (2) the needs of the case limit the usefulness
of the information sought as it could be accessed in a more cost-efficient and less burdensome
manner; and (3) the resources of the parties involved and the amount in controversy were relatively
small. The court also rejected the plaintiffs’ offer to have their own expert search the backup tapes
finding the request unduly burdensome, impractical and contrary to the spirit of the Federal Rules,
noting that privacy concerns would undoubtedly require the defendant to closely supervise the
plaintiff’s search thus creating unnecessary costs.
� Square D. Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D.Pa. July 15, 2008). In this intellectual
property litigation, the parties filed cross motions for sanctions based on the execution of a
previous forensic inspection of the defendant’s computer systems. The plaintiff requested a
forensic inspection of the defendant’s remaining computer systems, the removal of imaged data
from the defendants’ premises, and for a default judgment sanction. The defendant requested the
plaintiff be required to complete its forensic inspection on the defendant’s premises, that further
inspection of certain computers be prohibited, and sanctions for the plaintiff’s intentional disregard
for previous orders. Determining the defendant’s imposition of limitations to be untimely, the court
granted the plaintiff access to the defendant’s computer workstations. However, the court denied
the plaintiff’s motion for default judgment as the defendant’s conduct “falls just shy of conduct
befitting default judgment, i.e., ‘flagrant bad faith’ and ‘callous disregard.’” The court ordered the
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