Electronic Discovery and Incarceration: An Extreme Sanction for An Extreme Case
This blog’s alternate title is the eDiscovery Gang that Couldn’t Spoliate Straight, as both vivid lines are lifted straight from the court’s opinion in Victor Stanley Inc. v. Creative Pipe, Inc. et al., No. MJG-06-2662 (D.C.M.D. 2010).
The defendant in this case engaged in what may be the most egregious example of flouting court orders and destroying electronic data discovery in recent case history. The court delineated some of the defendant’s actions:
- Only producing minimal discovery when much more was known to exist
- Ignoring court orders to issue litigation holds and preserve evidence
- Deleting over 5,000 files with email correspondence
- Deleting over 9,000 files on his personal computer the night before a discovery hearing
- Overwriting the servers, using scrubbing programs to remove traces of deleted files
- Running disk clean up and disk defragmenter programs after agreeing in court to produce meta data
- “Nonchalantly” lying in depositions and in open court
This list does not really do justice to the considerable lengths the defendant went through to erase all traces of incriminating electronic data and email analytics. Ultimately, the Court concluded that the deleted ESI was “critical evidence proving the guts of Plaintiff’s liability claims.” Id. at 17.
The Court found the spoliation to be willful and in bad faith, holding the defendant in civil contempt with a purge: “Willful violations of serial court orders to preserve and produce ESI evidence can be treated as contempt of court, and [the defendant] be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney’s fees and costs that will be awarded….” Id. at 2. (N.B. the attorney fees were later assessed at just over one million dollars.)
This case was indeed an extreme example, but illustrates how email analytics can be the most powerful and compelling evidence available. Plaintiffs must have the capabilities to engage in advanced computer forensics capabilities to reveal when defendants engage in eDiscovery spoliation.