Archive: August 1, 2007

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Rule 37(f) Safe Harbor Provision Requires a Routine System in Place and Some Affirmative Action by Party to Prevent System from Destroying or Altering Information

Rule 37(f) Safe Harbor Provision Requires a Routine System in Place and Some Affirmative Action by Party to Prevent System from Destroying or Altering Information

Doe v. Norwalk Community College, 2007 WL 2066497 (D. Conn. July 16, 2007)

In this case, plaintiff Jane Doe sued Norwalk Community College ("NCC") and Ronald Masi claiming she was sexually assaulted by Masi, a former professor at the college.  Doe filed her complaint in November 2004, and in March 2006, Doe moved to compel the inspection of certain electronic records possessed by NCC.  The court granted the motion in July 2006, and permitted plaintiff’s expert to inspect certain NCC computers.  Based upon her expert’s findings, Doe moved for sanctions, seeking an adverse inference with regard to electronic files which she claimed the defendants destroyed.

Specifically, Doe claimed that the hard drives of key witnesses had been scrubbed or completely wiped of data.  Further, her expert found inconsistencies in the mailboxes of four individuals that suggested to him that data had been altered, destroyed or filtered.  For example, one witness’s PST file contained no Deleted Items and only one Sent Item and the Inbox and Sent Items contained data starting August 2004, even though other activity was present starting in 2002.  In addition, Doe presented evidence that the retention policy issued by the State Library, which provided for a two-year retention with respect to electronic correspondence, governed NCC, and that this policy was not followed with respect to the hard drives of the computers of faculty members who left the college. Read More

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