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Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at jane@litigationbestpractices.com.

Plaintiff Hammered with Case Dismissal for “Egregious” Discovery Violations – eDiscovery Case Law

November 30, 2012

By Doug Austin

 

Apparently, destroying your first computer with a sledgehammer and using Evidence Eliminator and CCleaner on your second computer (when you have a duty to preserve both) are not considered to be best practices for preservation.  Who knew?  ;-)

In Taylor v. Mitre Corp., (E.D. Va. Nov. 8, 2012), Virginia District Court Judge Liam O’Grady upheld the findings by the Magistrate Judge for dismissal of the plaintiff’s claims and payment of the defendant’s reasonable attorney’s fees and costs due to “egregious” discovery conduct.  Here’s why:

  • The plaintiff hired counsel back in 2009 “in anticipation of bringing this lawsuit against Mitre for violations of the FMLA and failure to accommodate his disabilities.  Mr. Taylor's lawyer immediately put him on clear notice that he was required to maintain all files and documents (electronic and otherwise) related to his claim, and that deleting or discarding such files could result in sanctions including dismissal of his claim.”;
  • The plaintiff filed his EEOC claim in November 2010;
  • Sometime in 2011, the plaintiff “wiped” his work desktop, then “took a sledgehammer to it” and disposed of it in the local landfill (as noted in the footnote: “Mr. Taylor has given varying accounts of the size and type of the hammer he used to wreck the computer, but does not deny that he smashed it with some nature of mallet.”);
  • Before destroying his work computer, the plaintiff “attempted” to back up files from it “but was only partially successful”;
  • In November 2011, the plaintiff filed his complaint;
  • On July 1, the Magistrate Judge “ordered Mr. Taylor to submit his current computer, a laptop, to inspection within a week.”  The plaintiff “had represented that whatever documents he maintained during the partially successful backup operation described above had been transferred to the laptop, and the Defendant won permission to inspect the laptop”;
  • A few days later, the defendant’s forensic expert examined the laptop and determined that the plaintiff had “run a program called Evidence Eliminator, a program whose express purpose is removing ‘sensitive material’ from one's hard drive and defeating forensic software.”  The plaintiff admitted that “he downloaded the program the same day he learned of the Court's inspection order”;
  • The plaintiff also ran another program CCleaner (which also erases files from the computer so that they cannot be recovered) “at least twice between the time of the Court's inspection order and the actual inspection.”

The plaintiff claimed “that CCleaner was set to run automatically, and so even if it did delete relevant documents, the deletion was not intentional.” – a claim that the court found to be “highly suspicious”.  However, when it came to the installation of Evidence Eliminator, Judge O’Grady did not mince words:

“For Mr. Taylor to download and run a program whose express purpose is deletion of evidence in direct response to the Magistrate Judge's order that his computer be produced for inspection was to blatantly disregard his duties in the judicial system under which he sought relief. The Court finds Mr. Taylor's conduct to be egregious and highly contemptuous of the inspection order. Mr. Taylor has forfeited his right to pursue his claims with this Court any further.”

So, what do you think?  Is this the most egregious example of spoliation you’ve ever seen?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
http://www.cloudninediscovery.com/ondemand/free-software-trial.aspx

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