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Spoliation – Case Terminating Sanctions

Case Terminating Sanctions.  It’s the spoliation unicorn.  The rare event that counsel either dreams of or has nightmares about.  In my fifteen-plus years of working in civil litigation, I have seen it occur only a handful of times, and it just happened again. 

Peak was hired as a neutral third-party examiner in a dispute between a  well-known national financial services corporation and one of its former employees.  Peak was asked to assist in the review and analysis of ESI from the Plaintiff (who was a former employee) in a suit brought in Federal Court.  At the conclusion of Peak’s analysis and reporting, and a review of motions by both parties, the Court found that, due to severe and significant spoliation, it would be “impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available.”

During Peak’s forensic review, Plaintiff produced laptops, cell phones, USB drives and an email account.  As Peak examined these devices, it found that:

• Both laptops had BleachBit wiping software installed and used, and one of the laptops presented for examination was not even the correct laptop Plaintiff actually used during the relevant period.  Plaintiff bought a new laptop and tried to pass it off as an older machine.
• All cell phones presented for review had been factory wiped prior to presentation.  iPhone wiping software was found to have been run from the laptops prior to the examination.
• USB drives produced in discovery had their free space wiped, eliminating the possibility of forensically reviewing prior deleted data they contained.
• The email account deemed relevant to the matter had been purged of emails on multiple occasions in a wholesale manner, and Plaintiff misrepresented the timeframe the account had been used to hide relevant use.

As a result of the vast and deliberate spoliation efforts undertaken by Plaintiff, the forensic review, and ultimately the discovery process itself was significantly compromised. 

The Court found that the proper remedy, in light of the numerous preservation failings, and concerted efforts by Plaintiff to thwart discovery, was a dismissal of the complaint.

Spoliation can be a difficult hurdle to overcome even when it is inadvertent or non-consequential, but when a litigant takes active, repeated steps to subvert the discovery process, the penalties can be severe.

ABOUT Peak Forensics: Peak Forensics is a full service Computer Forensics, Electronic Discovery and Consulting firm in Phoenix, Arizona.  Peak Forensics provides experienced, professional computer forensics services, client centric electronic discovery and seasoned testimonial and trial consulting services.  Peak’s CEO and founder, Jefford Englander, has been actively participating in computer forensics and ESI investigations for 15 years and has a background in local and federal law enforcement and the civil litigation realm.  From ESI collection to forensic analysis, hosted review, reporting and expert testimony, Peak can lead you to focused information.