Use of a Hammer and of Wiping Software to Destroy Evidence Results in Dismissal of Plaintiff’s Claims

Taylor v. Mitre Corp., No. 1:11-cv-1247, 2012 WL 5473573 (E.D. Va. Nov. 8, 2012) adopting recommendations of Taylor v. Mitre Corp., No. 1:11-cv-01247 (LO/IDD), 2012 WL 5473715 (E.D. Va. Sept. 10, 2012)

In this case, the Magistrate Judge found that dismissal of Plaintiff’s claims was warranted for his “egregious” discovery conduct, including physically destroying a relevant computer with a hammer and using both Evidence Eliminator and CCleaner to erase potentially relevant evidence.  The court also recommended that Plaintiff pay Defendant’s reasonable attorney’s fees and costs incurred as a result of the spoliation.  On appeal, the recommendations were adopted by the District Court.

In 2009, Plaintiff—a Systems Engineer who was “well versed in computer technology”—retained counsel “concerning his anticipated claims against Defendant” (his employer).  At that time, counsel advised Plaintiff of his obligation to preserve all information related to his claims and warned of the consequences of spoliation, including the possibility of dismissal.  Eventually, Plaintiff ended that relationship but soon retained different counsel.  Plaintiff’s complaint was ultimately filed in November 2011.  (Notably, the court rejected Plaintiff’s assertions that the short “gap” between counsel “removed his anticipation of litigation” prior to filing the lawsuit, particularly in light of evidence that despite ending his first attorney-client relationship he was committed to taking legal action against the defendant.)

During his employment with Defendant, Plaintiff used a desktop computer for both personal and work use.  Plaintiff alleged that sometime in 2010 or 2011 the desktop “died” and that he attempted to backup the contents onto an external hard drive with very limited success—most of the contents were lost, with the exception of information related to his wife’s medical case and disability.  After transferring what was saved to his new laptop, both the desktop and the hard drive were destroyed.  Indeed Plaintiff did not dispute that “in 2011 he took a sledge hammer, or hammer, to his desktop computer and then put it in the landfill.”  Details surrounding the loss of the external drive were less clear.

In 2011 Plaintiff acquired his new laptop onto which he installed CCleaner (this was the laptop onto which he claimed to have transferred the salvaged data from his desktop).  In 2012 the court ordered Plaintiff to submit to a computer inspection.  Emails from Plaintiff to counsel during that time indicated his “frustration” that the court was considering such an order and stated that Plaintiff would “either not provide the devices” or that he would move all “non-sensitive” files to a CD and then wipe the drive.  Plaintiff eventually allowed an investigation of his computer, including a keyword search, but would not allow the computer to be imaged.

The investigation of Plaintiff’s laptop “revealed a considerable amount of evidence of Plaintiff’s spoliation activity” including, for instance, that Plaintiff had downloaded Evidence Eliminator shortly after the court’s order for an inspection and that the program had been run at least once and possibly three times.  The inspection also revealed that “at a minimum, 16,000 files were deleted through the manual running of CCleaner.”

Discussing the prejudicial effect of the plaintiff’s actions, the court rejected Plaintiff’s assertions that the lost data was not relevant, concluding that “a primary failure in this case” was Plaintiff’s “misconception that he alone determines what is relevant to the case.”  Without confidence in what was or was not retained by the plaintiff, the court found that he had unduly prejudiced the defendant by his spoliation of evidence.

Accordingly, in light of the egregiousness of Plaintiff’s conduct and the prejudice to Defendant, the court found dismissal of Plaintiff’s claim was warranted.  In so finding, the court reasoned that Plaintiff’s conduct demonstrated the “intentional nature” of the spoliation, including for example his email to counsel indicating his intent to destroy evidence.  The court further found that Plaintiff should be ordered to pay Defendant’s reasonable attorney’s fees and costs, but declined to recommend punitive monetary sanctions.

The District Court adopted the recommendations of the Magistrate Judge.

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