Electronic Discovery Law

Kucala Enter., Ltd. V. Auto Wax Co., Inc., 2003 WL 21230605 (N.D. Ill. May 28, 2003)

Competitor sought declaratory judgment that defendant's patent for a particular type of automobile detailing clay was invalid. Defendant sought discovery relating to plaintiff's manufacturing process, and the court ordered the production to be via computer files or hard copy.

Defendant repeatedly failed to respond to the request for inspection, and the court granted defendant's second and third motions to compel. When the plaintiff's computer was finally inspected by defendant's computer specialist, it was discovered that software called "Evidence Eliminator" had been installed on the computer. The software had been accessed at least three times, the last of which occurred at 4 a.m. the morning of the inspection. The computer specialist determined that thousands of files were deleted and overwritten by the program in the days leading up to the inspection. 2003 WL 21230605 at *1.

Plaintiff testified that he purchased and downloaded the software from the website http://www.evidence-eliminator.com. He admitted that he ran the software on another computer, and threw away a third computer because it "crashed" and was no longer of any use to him. He testified that, prior to purchasing Evidence Eliminator, he started "cleaning up his hard drive," or deleting documents, which he deemed irrelevant from his computer. He testified that, contrary to his attorney's advice, he deleted documents because he was afraid that the defendant would not honor the protective order that was in place. Id. at *3.

On the defendant's motion for sanctions, the magistrate judge recommended that dismissal of the lawsuit, with prejudice, was warranted by plaintiff's discovery abuses. The court stated that it was not convinced that plaintiff did not act willfully and with the purpose of destroying evidence: "Any reasonable person can deduce, if not from the name of the product itself, then by reading the website, that Evidence Eliminator is a product used to circumvent discovery." Id. at *5. Although the court had no evidence that the software actually deleted relevant information, it was clear that over 14,000 files had been deleted. "The possibility that relevant documents were included in that mass deletion is something this Court cannot overlook - especially given the nature of the Evidence Eliminator software and [plaintiff] being advised by counsel not to use it." The possible prejudice to the defendant was "enormous, or perhaps inconsequential." Id. at *6.

The court concluded that the plaintiff had engaged in egregious conduct by his flagrant disregard of a court order requiring him to allow inspection of his computer and his utter lack of respect for the litigation process. It recommended that the appropriate sanction to impose upon plaintiff was the dismissal of his suit, with prejudice, and ordering him to pay defendant's attorneys' fees and costs associated with the motion. The magistrate specified that attorneys' fees should be calculated from the time that plaintiff first ran the Evidence Eliminator program on his computer, up to and including the time the parties appeared before the court for hearing on the motion. Id. at *8.