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After-Acquired Evidence that Employee Misused Laptop in Violation of Company Policy and Erased Data Survives Summary Judgment


Olson v. Int’l Bus. Mach.s, 2006 WL 503291 (D.Minn. Mar. 1, 2006)

John Olson (“Olson”) sued International Business Machines (“IBM”) in connection with his termination of employment. Claims included employment discrimination in violation of the Minnesota Human Rights Act, violation of the Family Medical Leave Act of 1993, and intentional infliction of emotional distress. Health care providers found that Olson suffered from mental health problems and had thoughts of harming his immediate supervisor, Shelley Green. On June 18, 2004, Olson was dismissed following an investigation by IBM’s violence assessment team.

On May 20, 2005, IBM counsel requested that Olson return the laptop that had been assigned to Olson by IBM, and asked that Olson not remove, destroy, or make any changes to the machine. Olson stated that he did not remember deleting information during his last 6 months at IBM or after his termination.

When LuciData was initially unable to recover information from the laptop’s hard drive, IBM served Olson with an interrogatory regarding the data, to which Olson replied that he may have “cleaned up” information to make the machine ready for its next user. LuciData was finally able to recover some information from the drive, which included a JPEG from a pornographic website and file names with indicia of sexually explicit materials. At Olson’s deposition, he admitted to deleting information from the laptop after his termination, but also testified that his son and his son’s friends (and possibly others) had used the machine. Mrs. Olson, however, testified that neither she nor her son had touched it.

IBM learned of the seemingly pornographic content after Olson’s termination, and only learned of the data erasure during discovery. IBM argued that had it known that Olson was using the IBM-issued machine for pornography, it would have terminated Olson regardless of whether he had made threats against Ms. Green. It further argued that erasing the drive constituted spoliation that could be addressed by adverse inferences in favor of IBM, and erasing the drive without permission was also grounds for termination.

Olson responded that IBM “can prove no set of facts to support its after-acquired evidence defense, and thus summary judgment should be granted for Olson and the defense should be stricken.” The court, however, found that “factual disputes exist as to whether IBM would have fired Olson for the purported violation of IBM’s computer use policy” and it is also unclear whether Olson is responsible for the files on the hard drive. Thus, since it could not be said that IBM cannot prove a set of facts that would support this defense, summary judgment was denied.