Use of Evidence Eliminator Results in Default Judgment Recommendation and Award of $145,811.75 in Expenses and Costs

Communications Center, Inc. v. Matthew Hewitt, et al., Civil No. S-03-1968 WBS KJM (E. D. Cal. Apr. 5, 2005)

In this case, where plaintiff alleged multiple causes of action, the court ordered defendant to provide mirror images of any hard drives in defendant’s possession that contained documents responsive to plaintiff’s requests for production. Documents were to be designated “Attorney’s Eyes Only” and subject to protective order. Defense counsel indicated that nothing would be withheld. Nevertheless, electronic evidence was destroyed and plaintiff filed a motion for sanctions.

Defendant timely produced three CDs, but these were not mirror images (defined by plaintiff’s expert as bit for bit forensic duplicates). Production was supplemented by 10 disks, some unreadable, which were also not mirror images. Defendant did eventually produce mirror images of four drives, but not before running Evidence Eliminator on three and re-installing an operating system on the fourth.

Defendant claimed that he ran Evidence Eliminator to erase evidence of an extramarital affair and embarrassing visits to web sites upon learning that mirror images would reveal information not readily apparent to the user. He admitted that he re-installed an operating system on the one drive knowing that this would destroy data.

The court found defendant’s explanation contradictory and not credible. The log created when he ran Evidence Eliminator in “safe mode” indicated that erased files likely contained responsive material. He intended to destroy discoverable evidence, responding to the court’s discovery order with “a stark affront to the judicial process.”

Plaintiff conceded that spoliated evidence is probably irrelevant to the fraud and breach of employment contract claims. The court presumed that erased evidence demonstrated the merit of the eight other claims, and recommended default on these claims. While Malone requires weighing the availability of less drastic sanctions, none were found available. Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987). Upon in camera review of billing records, fees and costs in connection with the motion for sanctions were awarded in the amount of $145,811.75.

A link to the full decision can be found here.

Copyright © 2018, K&L Gates LLP. All Rights Reserved.