Defendant Former Employer Entitled to Forensic Inspection of Plaintiff’s Home Computer, at Defendant’s Expense

Orrell v. Motorcarparts of Am., Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007)

In this sexual harassment and gender discrimination case, plaintiff sued her former employer, alleging a hostile work environment, wrongful discharge, and retaliation.  Plaintiff alleged that she was sexually harassed by several male co-workers and/or supervisors, as well as some of the defendant’s customers.  Most significantly for the purposes of the pending discovery motions, plaintiff contended that some of the harassment was in the form of "pornographic" and "offensive" emails that she was sent by co-workers and customers.  Plaintiff testified at her deposition that she had received an "overwhelming number" of those emails, "even hundreds" of them.  Although plaintiff received these emails on the laptop computer that defendant provided, she testified that it was her practice was to forward those emails to her home email address and store them on her home computer.  Plaintiff also testified that she forwarded some of these offensive emails to her husband, some of which he received on his computer at his job with the Bendix corporation, a non-party.

Shortly after receiving notice of her termination, but prior to returning her work laptop computer to defendant, plaintiff, with the aid of her husband, had the laptop’s hard drive "wiped."  (Defendant later performed a forensic examination of the laptop, which confirmed that no information could be retrieved from the hard drive.)  Plaintiff testified that her purpose in "wiping" the hard drive was to prevent any of her personal information being returned to defendant.  However, plaintiff’s husband presented a slightly different version of events at his deposition, testifying that although he ultimately took the computer to an information technology consultant who "wiped" the computer with a program entitled "Evidence Eliminator," he initially contemplated taking the computer to a "shooting gallery" where it would be destroyed.

In response to defendant’s discovery requests, plaintiff produced only a very small number of printed emails.  Further, the emails produced were in a format that did not reveal whether plaintiff was the author or the recipient.  Plaintiff also initially produced a single disk which she stated contained the responsive information that had been "wiped" from her work laptop computer.  When defendant accessed the disk, however, it did not contain any emails.

Defendant deposed plaintiff and her husband in October 2007.  Plaintiff testified that her ability to make any further production of documents was hampered because her home computer had "crashed" in August 2007.  She affirmed, however, that all responsive documents that had been "backed up" from the work laptop or recovered from the Orrells’ home computer’s hard drive by a third-party IT consultant.  Plaintiff testified that the responsive material had, at that time, already been produced to defendant.

Plaintiff’s husband, in addition to conceding that he had contemplated destroying the laptop, further contradicted plaintiff’s testimony by testifying that he gave to defense counsel another back up disk from the work laptop computer and that he "could not confirm" the total number of work laptop back up disks.  Regarding the home computer, Mr. Orrell testified that after its August 2007 crash, he had taken the computer to two IT consultants, and that the second consultant had successfully recovered "some" of the information, which had been produced.

In light of the apparent contradictions between the Orrells’ testimony and plaintiff’s other discovery responses, defendant moved to compel full and complete discovery responses, to compel production of computers for inspection, and for an order prohibiting further destruction of evidence.  Defendant requested that plaintiff and her husband produce for forensic examination, at their expense, their home computer, Mr. Orrell’s work computer (owned by non-party Bendix), and a computer owned by non-party Applied Nutriceuticals, which was described in the record as one of the Orrells’ "side businesses."

In November 2007, in apparent response to the pending discovery motions, plaintiff produced approximately 10,000 printed pages of documents, which plaintiff explained were recovered following yet another attempt to restore the home computer’s hard drive.  As with plaintiff’s earlier production, however, to the extent that any additional emails were produced, they were in a format that did not show their origin or recipient.  At the same time, plaintiff produced yet a third backup disk from her work laptop, which like the first two backup disks did not contain any of the emails that she claimed she had received on that computer.

Ruling on defendant’s discovery motions, the court observed:

Concerning the Defendant’s Motion to Compel the Plaintiffs to produce computers for a forensic examination of their hard drives, it is well settled that a party has a duty to preserve evidence when the party is placed on notice that the evidence is relevant to the litigation or when the party should have known that the evidence may be relevant to future litigation.  Silvestri v. GMC, 271 F.3d 583, 591 (4th Cir. 2001).  The duty to preserve encompasses electronic communications and documents, such as emails, or documents created by computer, such as invoices.  See Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y.2003) (holding in employment discrimination case that defendant company had duty to preserve emails related to claims asserted by plaintiff, and ultimately requiring defendant to restore 77 backup disks in order to search for and produce those emails).  In other words, "once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place ‘a litigation hold’ to ensure the preservation of relevant documents."  Zubulake, 220 F.R.D. at 218.  Accord Thompson v. United States Dept. of Housing and Urban Development, 219 F.R.D. 93, 100 (D. Md. 2003) (party had duty not to delete responsive emails, discovery requests for deleted emails were proper).

The fact that the Plaintiff’s home computer allegedly "crashed"–as opposed to having been "wiped" as the work laptop was–in no way eliminates the Plaintiff’s burden to do all she could under those circumstances to preserve evidence.  Teague v. Target Corp., — F.Supp.2d —-, —- (W.D.N.C. Apr. 4, 2007) (electronic information contained on plaintiff’s home computer was "clearly relevant" to claims in plaintiff’s gender discrimination case; where plaintiff had discarded the computer after it "crashed," court ordered that adverse inference jury instruction was appropriate).

Moreover, Fed. R. Civ. P. 34 permits a party to "inspect and copy, test, or sample any tangible things" which are within the scope of discovery under Rule 26, including computer hard drives of the computers which generated emails that were later improperly deleted.  See Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D.Minn.2002) (permitting "mirror imaging" of a hard drive under Rule 34 in order to retrieve deleted computer records, including email); Simon Property Group L.P. v. MySimon, Inc., 194 F.R.D. 639, 640 (S.D.N.Y.2000) (same); and Playboy Enterprises v. Welles, 60 F.Supp.2d 1050, 1053 (S.D.Cal.1999) (same).

The undersigned also notes that recently in this District, where there were inconsistencies in the evidence produced during discovery by the plaintiff in a breach of employment contract case as to whether the responsive information on his home computer was identical to the information on his former work computer, the plaintiff was compelled to produce his home computers for forensic examination by the defendant.  Hardin v. Belmont Textile Machinery Co., — F.Supp.2d —-, —- (W.D.N.C. Aug. 7, 2007).

Accordingly, the court ordered plaintiff to supplement a number of discovery responses, including her responses to Interrogatory 18 (computers used) and Interrogatory 20 (all computers "wiped" by plaintiff or her husband) to fully identify every computer that she used during the relevant period and to state clearly whether she or her husband have "wiped" any other computer in addition to her work laptop, or have otherwise deleted, erased, or destroyed any other evidence in the case.

The court also concluded that defendant was entitled to conduct a forensic examination of the Orrells’ home computer, at defendant’s expense.  Due to the concerns that plaintiff raised about the existence of confidential proprietary information on the other computers identified (Applied Nutriceuticals and Bendix), the court ruled that the initial forensic examination would be confined to the home computer.  However, in the event the examination revealed that there reasonably may be otherwise unavailable responsive information on either of those computers, defendant would be allowed to renew its motion, giving proper notice to the owner(s).  Similarly, the court ruled that defendant could renew its motion for costs if the initial examination revealed evidence of bad faith by plaintiff.

The court also found that a preservation order was appropriate, and ordered plaintiff and her husband, and any other person or entity acting on their behalf or within their control, "not to erase, delete, or otherwise destroy or alter any information, stored electronically or otherwise, that is responsive to any of the Defendant’s discovery requests or that may otherwise be relevant to the claims asserted in this action."

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