Destroying Evidence is Self-Destruction

Destroying Evidence is Self-Destruction

Electronically Stored Information (ESI) is comprised of all of the data held on a computer hard drive. If relevant, it is standard in litigation for the court to order a forensic evaluation of the ESI on a party’s computer during the discovery process. This is particularly true when there is a question as to the authenticity of documents being produced by a party.

In this case, an accident left Mr. Whited unable to care for himself. His sister and niece formed Luv-N-Care, LLC, listing Mr. Whited and themselves as the corporate officers of the closely held corporation. The corporation functioned with the sole purpose of providing constant care to Mr. Whited. The payroll for Luv-N-Care was funded by Mr. Whited’s insurance, Motorists Mutual Insurance Company, who was responsible for his care under Michigan’s “no fault” insurance. The legal process was initiated because of a dispute as to the amount of insurance benefits Luv-N-Care was entitled to for their services.

The discovery process brought about reasonable allegations that the plaintiff’s engaged in falsifying documents, which were submitted to the court. In response to these allegations the court ordered the plaintiff to surrender all computers for forensic examination. Forensic examination of the computers allows the courts to determine the validity of the documents being presented. Plaintiffs were not cooperative during any portion of the discovery process and subsequently granted dismissal of the plaintiff’s claim with prejudice.

When deciding whether

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to dismiss a case for failure to comply with discovery orders the courts use a four part test: (1) whether the non-moving party’s failure to cooperate in discovery was due to willfulness, bad faith, or fault; (2) whether the non-moving party’s failure to cooperate caused prejudice to the adversary; (3) whether the non-moving party was warned that its conduct could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered. Regional Refuse Systems, Inc. v. Inland Reclamation Co., 842 F.2d 150. 154 (6th Cir. 1988).

Willfulness and bad faith. After substantial claims of discovery abuse were reported the court was very specific when drafting the order for discovery of the computer systems. The order specified that prior to shipment for examination, use of the computers was strictly prohibited. The computers were shipped for examination after the stated deadline and all showed signs of excessive use or tampering including the replacement of a hard drive, deletion of 1,300 files and backdating of dozens of documents. The plaintiff offered weak excuses for breaching the court order, the court found this to be conclusive evidence of willfulness and bad faith. The evidence of bad faith was further solidified after a computer technician, who serviced the computers, testified that he had replaced the computer’s hard drive after the court order was in effect because the plaintiff’s had never informed him that using the computer prohibited. Because someone intentionally deleted computer files in direct violation of the court order, the first prong of the four-part test was met.

Prejudice to the defendant. The Court held that aside from a loss of both time and money, the plaintiff’s actions compromised the evidentiary record in such a way that the defendants could no longer be guaranteed a fair opportunity to defend itself against the plaintiff’s claims.

Prior Warnings. The third factor considers whether the plaintiff was warned that a failure to cooperate during the discovery process could result in dismissal of her case. The court order requesting the plaintiff to turn over her computer equipment clearly warned that a failure to comply would result in a dismissal with prejudice. Further, the plaintiff testified that she recognized the warning and understood the consequences associated with non-compliance.

Sanctions. The last and final prong of the test evaluates whether other sanctions were imposed prior to dismissing the case. The court applied a presumption of adverse inference to all documents, which were submitted to the court past the stated deadline. The court also allowed the defendants to re-depose witnesses at the plaintiff’s expense because the record was incomplete during the initial deposition.

The extreme level of disregard the plaintiff showed for the justice system and the civil litigation process had prejudiced the defendant to the point where their case was no longer defendable, warranting dismissal. Dismissal with prejudice under Rule 37(b)(2) or 41(b) is used only in extreme situations as a measure of last resort; the facts in this case justified the extreme outcome. It is less damaging to admit damning evidence than it is to destroy it, spoliation of evidence can result in the inability to litigate your claim now or in the future.

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