World Courier v. Barone, 2007 WL 1119196 (N.D. Cal. Apr. 16, 2007)
In this misappropriation of trade secrets case, plaintiff moved for sanctions for spoliation of evidence based upon the admitted destruction of a hard drive containing a copy of plaintiff’s data by defendant Barone’s husband, Jay Barone. Plaintiff sought an adverse inference instruction and monetary sanctions consisting of compensation for the time and expense involved in the forensic examination of computer files, the time and costs associated with developing deposition testimony and document discovery, and attorney’s fees associated with litigating the motion. The court granted in part and deferred in part the motion.
The court rejected defendants’ argument that they could not be sanctioned because the spoliator, Mr. Barone, was not a party to the action. The court stated that the argument lacked merit because it overlooked a party’s affirmative duty to preserve evidence. The court stated the duty to preserve extends to evidence not directly within the party’s custody or control so long as the party has access to or indirect control over such evidence. The court found: