Archive: December 12, 2007

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Defendant Former Employer Entitled to Forensic Inspection of Plaintiff’s Home Computer, at Defendant’s Expense
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Cost to Restore Inaccessible Backup Tapes Exceeds Possible Yield of Relevant Information

Defendant Former Employer Entitled to Forensic Inspection of Plaintiff’s Home Computer, at Defendant’s Expense

Orrell v. Motorcarparts of Am., Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007)

In this sexual harassment and gender discrimination case, plaintiff sued her former employer, alleging a hostile work environment, wrongful discharge, and retaliation.  Plaintiff alleged that she was sexually harassed by several male co-workers and/or supervisors, as well as some of the defendant’s customers.  Most significantly for the purposes of the pending discovery motions, plaintiff contended that some of the harassment was in the form of "pornographic" and "offensive" emails that she was sent by co-workers and customers.  Plaintiff testified at her deposition that she had received an "overwhelming number" of those emails, "even hundreds" of them.  Although plaintiff received these emails on the laptop computer that defendant provided, she testified that it was her practice was to forward those emails to her home email address and store them on her home computer.  Plaintiff also testified that she forwarded some of these offensive emails to her husband, some of which he received on his computer at his job with the Bendix corporation, a non-party.

Shortly after receiving notice of her termination, but prior to returning her work laptop computer to defendant, plaintiff, with the aid of her husband, had the laptop’s hard drive "wiped."  (Defendant later performed a forensic examination of the laptop, which confirmed that no information could be retrieved from the hard drive.)  Plaintiff testified that her purpose in "wiping" the hard drive was to prevent any of her personal information being returned to defendant.  However, plaintiff’s husband presented a slightly different version of events at his deposition, testifying that although he ultimately took the computer to an information technology consultant who "wiped" the computer with a program entitled "Evidence Eliminator," he initially contemplated taking the computer to a "shooting gallery" where it would be destroyed.

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Cost to Restore Inaccessible Backup Tapes Exceeds Possible Yield of Relevant Information

Palgut v. City of Colo. Springs, 2007 WL 4277564 (D. Colo. Dec. 3, 2007)

In this employment discrimination litigation, the magistrate judge made a number of findings and conclusions relevant to several outstanding e-discovery disputes.  Among other things, the judge found:

  • That defendant conducted “an adequate and full search of all ESI formatted documents that may be relevant to the issues before this court and which are in [defendant’s] possession.”  Nevertheless, defendant agreed to conduct an additional search, in accordance with the parties’ stipulation, a copy of which is available here.  Among other things, defendant agreed to conduct an additional electronic search of ESI, using keyword searches agreed upon by the parties.
  • “That the 2006 Amendments to Fed. R. Civ. P. 34 simply clarify ‘that discovery of electronically stored information stands on equal footing with discovery of paper documents.’  See Advisory Committee’s Note on 2006 Amendments.  Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant’s electronic information storage systems than to defendant’s warehouses storing paper documents[.]”

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