Why Parties to a Lawsuit Need to be Open with Their Adversaries When Technical Difficulties Occur with Their Electronic Storage Devices

Disclose or Your Client Could Be Legally Exposed

Author: Caiti Derenze
Case Citation: Byrne v. YP Conn. Info. Servs., LLC, 2016 Conn. Super. LEXIS 1636
Employee/Personnel/Employer Implicated: Employee
eLesson Learned: When responding to a discovery demand or when there is a technical difficulty with an electronic device that is relevant in the manner, a party is obligated to convey the operating difficulty and disclose any steps taken to preserve documents on the electronic device.
Tweet This: Failure to disclose technical difficulties with electronic devices during litigation can lead clients to greater legal exposure.

An opposing party must be notified when a relevant electronic device is malfunctioning. In Byrne v. YP Conn. Info. Servs., LLC, the plaintiff continuously frustrated the discovery process for two years by failing to turn over information that was contained on his electronic storage devices that was requested for in interrogatories and production of document requests. The court held a hearing on this matter and as a result, the plaintiff provided his laptop for a forensic review. During that review, it was discovered that there was little to no information on the laptop but provided evidence that the plaintiff had erased information from the laptop before turning it over for forensic review.

In response, the defendant filed a motion for sanctions against the plaintiff for failure to preserve and provide electronically stored information. Plaintiff argued that the information’s deletion was accidental. He asserted that a few weeks before he was scheduled to turn over the laptop, it had difficulties operating. However, there was evidence provided by a forensic expert that 20,000 files were removed from the laptop and transferred to two external hard drives. The expert further attested that the act of transferring files required a definitive action on the part of the plaintiff.

The court was not swayed by the plaintiff’s excuse, especially since he had been failing to comply with discovery demands for two years. The court offered guidance for future litigants what to do when a requested electronic storage device malfunctions. If there are issues with the device, a party should not turn it over. Instead, the discovery should include a statement of the malfunction and the documents transferred to an external device.

Here, the plaintiff did not disclose any difficulties with his laptop, nor did he disclose that he had transferred his files to two external hard drives. The court saw this as another example of the plaintiff’s continual attempts to thwart discovery. However, instead of dismissing the plaintiff’s action for failure to comply with discovery, because the external hard drives were available, the court awarded the defendant attorneys fees, expert fees, and forensic analysis fees. Additionally, the court ordered that the plaintiff provide all external hard drives which were used to access, transfer or delete any file in the plaintiff’s laptop.

Caiti Derenze graduated from the College of the Holy Cross located in Worcester, Massachusetts where she earned a B.A. in Political Science in 2013. Prior to attending Seton Hall University School of Law, Caiti taught 5th grade and Kindergarten as a Teach for America corps member in Miami, Florida. After graduating law school in May 2018, Caiti will serve as a clerk to a judge in the Appellate Division of New Jersey. 

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