I Deleted Your Damning Evidence and There’s Nothing You Can Do About It

I Deleted Your Damning Evidence and There’s Nothing You Can Do About It

Again with the scandalous sex tapes?  Seriously?  With all the publicity surrounding leaked sex tapes coupled with the prevalence and ease of digital communication, one cannot honestly believe such a tape will remain a well kept secret.  You’ll receive no sympathy on this blog for your escapades, and you’ll receive no sympathy in the Ohio court system, either.

In Davis v. Spriggs, Spriggs was suing her former husband (Davis) for posting pictures and video on an adult website after the divorce settlement, signed a few months prior, specifically prohibited such distribution.   Spriggs discovered these pictures after logging into a members-only adult website which sent her enough email spam she just had to check it out. Whilst cruising the racy adult website she also discovered pictures of her ex’s new girlfriend.

Spriggs made numerous attempts to have the websites take down her pictures until she eventually filed a law suit on October 4, 2005 against her former husband for violating the terms of the divorce by distributing the for-your-eyes-only pictures.  Spriggs first served Davis with a request for documents, computers, and credit card statements on January 23, 2006.  That motion was followed by several more motions and court orders, all which Davis chose to ignore.

SIXTEEN MONTHS LATER Davis brought forth what he claimed were all of his computers.  (That’s plenty of time to alter anything on your computer, walk cross-country, or even have a couple of children.)  Not only did the trial and appellate courts not sanction Davis for failing to comply with multiple court orders for over a year but they found it perfectly acceptable that Davis had “Evidence Eliminator” programs which were set to launch at computer start-up.  And unlike some other cases we’ve covered, the court didn’t see a red flag, or take issue whatsoever, in the term “Evidence Eliminator.”

This couple obviously had issues, to say the least (i.e. taking nude pictures of each other, one of them posting the pictures online to retaliate, her stumbling upon a website with her pictures on it and ironically her ex-husband’s new girlfriend, and another fun little tidbit – at some point she showed her mother-in-law the nude pictures).  It’s pure Jerry Springer material.  Yet, none of this vitiates Davis’ violating numerous court orders for over a year until finally producing computers with Evidence Eliminators on them.   Besides, if Davis had this program on his computer why did it take him 16 months comply with the court order?  Something’s fishy here.

After forensic analysis, the court in Spriggs held Davis’ computers lacked any evidence of wrongdoing and did not sanction Davis for disregarding numerous court orders to turn over his computer.  The case never states what profession Mr. Davis is in but states that “it would not be unusual for someone in [Davis’] line of work, who has sensitive information on his computer, to use this type of program on a regular basis.”

What profession would an evidence eliminator program be appropriate for?  Evidence Eliminator’s official website boasts widespread usage by law enforcement and police officers but interestingly, the website removepornfast.com offers a free trial of Evidence Eliminator and a link to, yes, the official Evidence Eliminator website.  This was all discovered in the course of online research for this entry… Really… I promise…

For now, in this area of Ohio this case stands for the proposition that if you can justify having a program on your computer to delete incriminating files, then anything illegally deleted is simply collateral damage. However, these facts seem a bit peculiar, and one probably shouldn’t bet on such an outcome occurring in other jurisdictions.

Judge Hoffman, concurring in part and dissenting in part, was notably confused on the court’s unconcerned attitude regarding Davis’ several failures to comply with the court’s orders and his disregard of the court’s authority.  (He might not respect his wife, but he should surely respect the court!)  Hoffman thought Davis should at a minimum be sanctioned for his spoliation and procedural violations.  Hoffman also notes that the court is in the dark as to Davis’ professional requirement for such a computer program and when the program was actually installed.

There seems to be more to this case than what the opinion offers and knowing Davis’ profession could be the missing link.  For example, if Davis was in law enforcement or had some other connection to the trial judge that could explain the court’s lackadaisical approach to Davis in general and give possible merit to Spriggs’ contention that the trial was plagued by “frat-boy antics, locker room banter, and high school wisecracks.”  On the other hand, maybe in trial the facts from the Spriggs Camp were so unbelievably outrageous and the facts from Davis’ were so understandable that this ruling was warranted.  We’ll never know.  In the meantime, be careful what you store on your PC.  If not, and you live in Ohio, maybe an evidence eliminator is right for you.

Comments (6):

  1. Nothing about this case surprises me. Shoot, women pay taxes for police services, and the police often refuse to provide services. See The “Bad Cop” section of Familylawcourts.com
    http://www.familylawcourts.com/Domestic_Violence_Stats_3XS.html

  2. If I understand the summary correctly, the program launched at start-up, so the incriminating evidence, if such it was, was already gone when the court order issued. Perhaps the court took an “a plague on both your houses” approach. There appears to have been plenty of that to go around. The failure to comply with multiple court orders does bother me, though.

  3. I am surprised by this holding. As you note, perhaps the gentlmen (if you can call him that) using the evidence eliminator had a job in which he handled highly classified information. I find this problematic because on its most basic level this is spoliation of evidence. It seems the Ohio court created a loophole for those persons with the right credentials. If police officers and FBI agents can use evidence erasing programs, how are we ever supposed to conduct investigations into corrupt officers and the like? This seems like a case of “absolute power, corrpupts absolutely.”

  4. This is outrageous. There are too many unanswered (better yet, unasked), relevant questions here. Among them: when was the “evidence eliminator” program installed? Sure, we have less than savory characters here, but the ex-wife is still entitled to her day in court – in my opinion, the court denied her that.

  5. I find this problematic because on its most basic level this is spoliation of evidence. It seems the Ohio court created a loophole for those persons with the right credentials.

  6. Unbelievable !! How it could happened??

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