eDiscovery Daily Blog

• November 30, 2012

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.

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