In a recent Order entered in Lynn M. Johnson v. BAE Systems, Inc. et. al., Civil Action No. 11-cv-02172, May 27, 2015, the District Court for the District of Columbia entered an adverse inference instruction but declined to dismiss an action after Plaintiff engaged in eDiscovery misconduct.
Plaintiff, a U.S. government employee deployed in Iraq, sued Defendants for actions taken by an employee of BAE while they worked on a project together. Plaintiff’s alleged damages include “severe physical and emotional health problems.” As part of discovery, Defendants sought Plaintiff’s medical records in preparation for Defendants’ expert’s examination of Plaintiff. Plaintiff falsified these records, and she was sanctioned for her actions.
Defendants then requested emails and other information from Plaintiff’s computer and requested a forensic examination of such computer. On the night Defendants made the request, Plaintiff hired a local computer technician, who ran a program capable of permanent file deletion. The subsequent forensic analysis of the computer showed that Outlook files containing thousands of emails had been added to the recycling bin and permanently deleted. The technician testified that Plaintiff did not tell him she was in litigation and did not ask him not to delete anything. He also testified that he did not place the Outlook files in the recycle bin. Defendants also requested Facebook messages, and the court found evidence that Plaintiff had tampered with such messages.
The court found that Plaintiff had engaged in discovery misconduct, including deleting thousands of Outlook files herself. Because the court held that the deleted messages were not dispositive in the case, the court declined to dismiss the case, instead ordering Plaintiff to pay Defendants’ fees in recovering the deleted files and ordered an adverse inference in Defendants’ favor.