Dead Men Tell No Tales, But Deleted Evidence Does
April 16, 2010Dead men tell no tales, but their bodies provide enough evidence to paint a graphic picture. The same is true of deleted files on a computer. Missing files can carry the inference that the evidence was only destroyed because it would have been damaging to the party responsible.
In Paris Business Products, Inc. v. Genisis Technologies, LLC (“Paris”), Genisis Technologies, LLC, (“Genisis”) was subject to a discovery order requiring it to preserve all relevant data on company-owned computer hard drives. Despite this order, Genisis’ executive officers allegedly were responsible for: (1) deleting the company hard drives by reformatting them; and (2) physically removing and destroying some hard drives.
The court in Paris found that spoliation does not require a finding that the company officers were responsible for the missing data. An adverse inference can be applied against a defendant for spoliation when there is merely “negligent destruction of relevant evidence.” Paris Business Products, Inc. v. Genisis Technologies, LLC, 2007 WL 3125184, ¶ 9 (D.N.J. 2007) (citing Mosaid Technologies Inc. v. Samsung Electronics Co., Ltd., 348 F.Supp.2d 332, 338 (D.N.J. 2004)).
All that is required for a court to issue an adverse inference is that “a party has notice that evidence is relevant to an action, and the party either proceeds to destroy that evidence or allows it to be destroyed by failing to take reasonable precautions.” Id. Courts may find that the destroyed evidence was probably damaging to the party responsible and issue an adverse inference jury instruction. Id. (citing Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir.1994).
In Paris, the court found all of the necessary elements were met, and that Genisis destroyed evidence it was on notice to preserve. As a result, the jury was instructed that they may infer the evidence would have been damaging. Thus, even when evidence may be damaging to a client, it is important for counsel to inform the client of the serious risks of destroying that evidence. Adverse inferences make a lawyer’s job more difficult; but more importantly they make a client’s chance of success slimmer – something that all clients should be able to appreciate.
Evan received his B.A. from Washington University, St. Louis. He will receive his J.D. from Seton Hall University School of Law in 2010. After graduation, he will clerk for a Superior Court of New Jersey, Criminal Division judge.
More...
Tagged as: Accessibility, Chain of Custody, Computer Forensics Protocols, Good Faith, Legal Hold/Preservation, Procedure, Production of Data, Sanctions, Spoliation.
View more articles implicating: Owners/Executives
Subscribe to this post's comments through its RSS 2.0 feed.
I agree with the court’s decision that even negligent destruction of evidence should lead to an adverse inference instruction. But it sounds like the destruction in this case was hardly negligent! The officers had to be aware that by reformatting some hard drives and destroying others, they would be erasing ESI. The interesting part is that a decision like this seems to require at least two big inferences: (1) the information stored on the hard drives was relevant, and (2) it was also damaging.
[Reply to this comment]
Frank [eLL Editor-in-Chief] Reply:
April 21st, 2010 at 10:48 PM
@MAH,
Agreed, though I think this was more of a one-two, left jab-right hook style opinion, where the court expresses its view that “clearly you deserve this adverse inference,” and also, “for the record, the standard for this sanction is far below what you’ve displayed.”
No matter how the defendant plays it now, it’s going to be tough to appeal this decision when it has so far exceeded the established standard of conduct. Consider the precedent set.
[Reply to this comment]
Attorneys walk a very fine line when representing clients who may possess potentially damaging evidence as in this case. It would seem to me that a when faced with these types of circumstances, it is would be best to push for a settlement versus engage in litigation that would weighted against your client from the outset. AS more and more decisions like the one above are handed down, attorneys will be forced to change their approach when it comes to ESI.
[Reply to this comment]
As the venerable Mr. Rosenberg points out, there are serious risks involved in destroying damaging evidence. In this case the spoliation resulting in an adverse inference. However, an adverse inference is only a “middle of the road” sanction - sanctions can escalate to dismissal of the the action. On the other hand, what if the evidence is that damning - to the point of being fatal to one’s case? Is there a greater risk in preserving and producing the evidence or in rolling the dice, destroying the evidence and hoping the potential sanction is less damaging to one’s case? To be clear, I am not advocating for intentional spoliation, however, I can see some attorneys and/or clients viewing such a course of action as the cost of doing business.
[Reply to this comment]
John Chao Reply:
April 27th, 2010 at 9:39 AM
@Matthew Mann,
I think if a company had evidence that is that damaging to their case would probably pursue settlement rather than litigation.
[Reply to this comment]