eDiscovery Daily Blog

• September 14, 2015

In Watkins v. Infosys, 14-0247 (W.D. Wa., July 23, 2015), Washington District Judge John C. Coughenour denied the defendant’s Motion for the Sanction of Dismissal but granted the defendant’s Motion for Summary Judgment against the plaintiff for spoliation of data due to her use of “Disk Wiping” software to delete ESI.

Case Background

In this discrimination case, the defendant’s forensic expert determined that the plaintiff performed a Bing search for the term “disk wipe” and downloaded and installed file wiping software onto the hard drive of her work computer around October 20, 2013, and ran the program to wipe files.  In addition, eleven external media drives had been connected to the plaintiff’s laptop in the days prior to the disk wipe.  Furthermore, the plaintiff perjured herself when she stated that “she did not `remove’ things from Defendant’s premises,” and that she “followed procedures typical with such litigation . . . to avoid the alteration or deletion of documents, in addition to preserving data back-ups relating to her employment.”

The plaintiff ultimately admitted in her deposition that she wiped the files, claiming that she did so out of concern for information preservation and client confidentiality.  In a supplemented response filed on the last day of discovery, the plaintiff again refused to turn over the wiped contents of her work computer, claiming that all of the files passed through the defendant’s servers (so the defendant presumably had copies), that the unproduced files were “vast and irrelevant to the claims or controversies in this case” and that she was “in the process of replicating all documents that she retained and will provide the same to Defendant upon their soonest availability.”

Judge’s Ruling

Judge Coughenour stated that he found the plaintiff’s responses “both illogical and unbelievable”, noting that her “brief in response to Defendant’s motion for the sanction of dismissal only exacerbates the problem…There, Plaintiff regurgitates flimsy justifications for wiping her disk drive, doubles-down on her unsupported argument about the irrelevance of the wiped files, and asserts blankly that “there has been no actual suppression or withholding of evidence since the entire content of Plaintiff’s computer has been produced to Defendant.”

With the spoliation (and associated perjury) clear, Judge Coughenour then turned his attention to determining the appropriate sanctions.  To consider dismissal, he noted the requirement to weigh five factors: (1) the public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its dockets, (3) the risk of prejudice to the party seeking sanctions, (4) the public policy favoring the disposition of cases on their merits, and (5) the availability of less drastic sanctions.  Reviewing the five factors, Judge Coughenour found “that three weigh in favor of dismissal and two do not” and, while describing it as “an incredibly close call”, he stated that “the Court prefers to address this case, finally, on its merits.”  Therefore, he denied the defendant’s motion for dismissal, opting instead to grant a motion for summary judgment.  Judge Coughenour also ordered plaintiff’s counsel to show cause as to why sanctions should not be issued against them.

So, what do you think?  Should the court have granted the motion for dismissal?  Please share any comments you might have or if you’d like to know more about a particular topic.

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