Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
Spoliation: How to Get Your Case Dismissed
January 7, 2010
First, a hat tip to Jason Shinn whose "Defending the Digital Workplace" blog recently carried an interesting post on Gillett v. Michigan Farm Bureau, Michigan Ct. App., No. 286076 (Dec. 22, 2009).
Though the case really sets no precedent, it does underscore what never ceases to amaze me: Folks who know better than to destroy evidence do it anyway, and then bleat about the draconian nature of the court's sanction (the lower court dismissed the case).
Plaintiff had filed suit for alleged sexual harassment by defendants in the workplace. An attorney for the defendants wrote a preservation of evidence notice advising that plaintiff should retain his personal e-mails. So of course he deletes them. He claims that the deletions were due to the uninstallation of problematic software. Sorry, fellow, the "problematic software" was still there, as the pesky computer forensics expert pointed out.
The hapless plaintiff stick to his guns, saying that if personal data had been lost, it was through the routine, good faith operation of his computer. Yeah, right. The forensics evidence showed that the defendant had deleted an average of 2000 files per month until October of 2007 (after receiving the preservation notice). In that month, more than 200,000 files were deleted. Clearly, the acrid smell of a smoking gun hit the court's olfactory senses.
Unsurprisingly, the appellate case upheld the dismissal and found no abuse of the lower court's discretion.
Hint to would-be spoliators: Massive spoliation of individual files/folders cannot be hidden from computer forensics experts. You might as well wipe the entire drive. Either way, you are probably SOL with the court.
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