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computer forensic
Uses of Electronic Evidence & Computer Forensics (Continued)

In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 2004 U.S. Dist. LEXIS 2215 (S.D.N.Y Feb. 18, 2004).
Pending a motion by the defendant to dismiss, plaintiff filed a motion to lift the automatic stay of discovery, claiming that additional discovery was essential to safeguard and restore email messages that defendant and his subordinates had destroyed. As defendant had stated that they were following every action to protect relevant electronic evidence, the court found that, pursuant to 15 U.S.C.S. 78u-4(b)(3)(B) of the Private Securities Litigation Reform Act, no exceptional circumstances were presented that permitted discovery to commence.

Kendrick v. Mylan Labs, Inc. (In Re Lorazepam & Clorazepate Antitrust Litig.), 2004 U.S. Dist. LEXIS 558 (D. D.C., Jan. 16, 2004).
The parties were ordered to consult with the provider of their electronic discovery services to determine if electronic documents that had been produced on CD-ROM could be rendered searchable.

First USA Bank v. PayPal, Inc., 2003 U.S. App. LEXIS 18875 (Fed.Cir. Aug. 21, 2003).
Plaintiff subpoenaed defendant's former CEO in an attempt to compel his deposition as well as forensically inspect his laptop computer system in this patent infringement case. The plaintiff alleged that the former CEO had utilized this laptop computer system while employed by the defendant and the magistrate judge ruled in the plaintiff's favor, allowing a search protocol that permitted a forensic duplication of the laptop computer system's hard drive. The district court avowed this order and the appellate court dismissed the former CEO's appeal.

Kerber v. Dairy Queen Operators Association, 2003 Minn. App. LEXIS 866 (Minn. Ct. App. July 22, 2003).
Defendant had a policy prohibiting its employees from utilizing the computer systems for personal use, however, the court found that plaintiff, who utilized an instant messaging services to discuss whether Good Friday was a paid company holiday, was violating employee policy. Therefore, it was determined that plaintiff was not discharged for misconduct and that plaintiff was eligible for unemployment benefits.

Columbia Valley Reg. Med. Ctr. v. Bannert, 2003 Tex. App. LEXIS 5857 (Tex. App. Corpus Christi July 10, 2003).
The appeals court found that evidence pertaining to the person responsible for creating an electronic document on a shared computer system was not sufficient to support the jury's decision and thus reversed a $1.5 million award.

Rampersad v. Deutsche Bank Sec., Inc., 2003 U.S. Dist. LEXIS 7867 (S.D.N.Y. May 9, 2003).
Pursuant to the Private Securities Litigation Reform Act, plaintiff made a motion to lift the automatic stay of discovery, which was denied.

Medical Billing Consultants, Inc. v. Intelligent Med. Objects, Inc., 2003 U.S. Dist. LEXIS 5606 (N.D. Ill. Apr. 4, 2003).
Plaintiff claimed that defendant did not produce requested email messages and made a motion to compel inspection of their computer systems, however, the court denied this motion due to insufficient evidence.

Go2Net, Inc. v. C I Host, Inc., 115 Wn. App. 73, 60 P.3d 1245, 2003 Wash. App. LEXIS 33 (Jan. 13, 2003).
The court found that email messages that were produced one day prior to the summary judgment hearing were not considered, "newly discovered evidence".

Bryant v. Aventis Pharms., Inc., 2002 U.S. Dist. LEXIS 21070, 90 Fair Empl. Prac. Cas. (BNA) 757, 147 Lab. Cas. (CCH) P34667, 8 Wage & Hour Cas. 2d (BNA) 486 (S.D. Ind. Oct. 21, 2002).
In this age discrimination suit, defendant declared that plaintiff had been terminated as a result of falsely reporting sales calls. Although plaintiff admitted to doing so, she asserted that other employees had as well and produced email messages in which plaintiff claimed that four other employees had admitted that they had falsified reports of sales calls as well. The court granted summary judgement in favor of defendant after finding that, since the email messages were recovered from the plaintiff's computer system after she had been terminated, defendant did not know about the other employees' false reports until after plaintiff had already been terminated.

Tulip Computers International B.V. v. Dell Computer Corporation, 52 Fed. R.Serv. 3d 1420 (D. Del 2002).
In this patent infringement case, on several occasions defendant did not answer discovery requests, did not offer any reasonable explanations for failing to answer discovery requests, and did not present any witnesses capable of answering questions regarding its records management system. Plaintiff moved to compel defendant to provide the computer hard drives utilized by specific company executives for key word searching. The court granted this motion and ordered plaintiff to provide defendant with a list of the email messages containing the search terms so defendant could then review them for privilege and confidentiality before producing them for plaintiff.

Playboy Enterprises, Inc. v. Welles, 60 F. Supp.2d 1050 (S.D. Cal. 1999).
Plaintiff claimed defendant infringed upon plaintiff's trademark by utilizing their name and logo on defendant's personal website. Defendant counterclaimed based on defamation and interference with prospective business advantage. Although plaintiff requested production of email communications, defendant routinely deleted such email messages throughout the litigation; thus, plaintiff moved to compel defendant to provide plaintiff with her computer hard drive for mirror imaging. Defendant contended that plaintiff had not specifically referenced the computer hard drive in their initial request for production. The court found that defendant's computer hard drive was discoverable as it likely held information relevant to the case and that production of such information would not be unduly burdensome upon Defendant.


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