Digital Life After Death

Digital Life After Death

Some people think that when you delete a file off of a computer it is gone forever. The truth is that it still exists on your computer, and deleting a file is more akin to removing a note card from a card catalog at the library. The book still exists, it is just much more difficult to find. The same is true of files, and one court has found that even deleted files are subject to discovery orders and sanctions can be issued for destroying them.

In TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009), plaintiffs, TR Investors, LLC (“TRI”), sought sanctions against defendant, Arie Genger, for using software that deleted files in violation of an existing discovery order.

Genger started and served on the board of TRI. A rival group of investors attempted to execute a takeover; however, Genger refused to step down and litigation ensued regarding who was in control of the company. To ensure the courts ability to resolve the dispute a status quo order was issued stating that “the parties to the [dispute] … are hereby restrained and enjoined from, directly or indirectly … tampering with, destroying or in any way disposing of any Company-related documents.” TR Investors, LLC, 2009 WL 4696062, at ¶1.

Over the course of a weekend, Genger and his attorneys hastily went through the TRI computers to separate discoverable documents from Genger’s personal files that were not related to the litigation. Genger’s attorneys did not make a complete copy of the relevant hard drives. If they had, it would have been possible to recreate the data on those drives. Instead, the attorneys only copied the files that they went through with Genger.

After

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the weekend, and unbeknownst to his attorneys, Genger brought in his computer consultant in the “dead of night” to run a program that wiped clean the unallocated portions of the TRI server and his personal work computer. Id. Unallocated portions of a computer hard drive may seem useless; however, they retain copies of all documents that were once opened on the computer until the computer needs that space for something else. Computers retain files in the unallocated portions of a hard drive for days, months, or even years after the original file has been deleted. Thus, by wiping clean unallocated portions of the applicable hard drives, Genger intentionally destroyed documents his attorneys were unaware of, and were protected by the status quo order.

The activities of Genger and his computer consultant were discovered after he was ousted from TRI because the cleaning program that was used left a digital signature. Due to Genger’s conduct the court fashioned a very unique remedy involving the following: (1) Genger was ordered to turn over ten documents he disputed were privileged; (2) Genger’s burden of persuasion for any affirmative defense was elevated by one level such that if normally he was required to show a mere preponderance, he would now have to pass a clear and convincing standard; and (3) Genger was forced to pay $750,000 in fees and expenses to his adversary. Id. at ¶ 18-19.

The sanctions against Genger were issued because the court found him both in contempt and responsible for the spoliation of protected evidence. Though the court did not believe him, Genger claimed that he had no idea what he did was wrong and that he only wished to protect his personal documents.

As counsel for a client who is subject to an e-discovery order, it is an attorney’s job to inform a client what actions are unacceptable. Here, Genger took action in the middle of the night and intentionally did not inform counsel of his plan. It may be impossible to control a client who intends to deceive even his own attorney; however, if Genger’s attorneys had made complete copies of all the relevant hard drives, then even the actions of a dishonest client would not have lead to sanctions because no documents would have actually been destroyed.

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