eDiscovery Lesson: Surprise! Dismissal Proper After Taking Sledgehammer to Computer
In Taylor v. Mitre Corporation, 2012 WL 5473573 (E.D.Va. Nov. 8, 2012), an employee alleged employment discrimination. After making the requisite EEOC claim, the employee took a “sledgehammer” to his work computer containing email threads and discarded the scraps in a landfill. He subsequently received the “right-to-sue” letter from the EEOC and filed his complaint in federal district court.
Once eDiscovery commenced, plaintiff was ordered to submit his personal laptop to an objective computer forensics expert. A computer expert himself, plaintiff claimed to have attempted to back-up the electronic data from the destroyed work computer on his personal laptop. However, the objective expert discovered plaintiff had used two separate computer wiping software programs on the personal computer. Although plaintiff claimed the programs were set to run automatically, this was belied by the fact that the one ran on the same day the court ordered the laptop produced.
The Court found the employee’s conduct to be egregious and warrant dismissal of his case, even if it was true that he attempted to preserve the electronic data, and even if the programs were set to run automatically. Although the Court could not conclusively state that the loss of the documents and data denied the employer the ability to defend itself, due to his deliberate and unilateral actions, the employee forfeited his right to pursue his claims in court. Finally, the Court also ordered the employee to pay reasonable attorney fees and costs to the defendant as further sanction for spoliation.
This case demonstrates the point that severe sanctions may be appropriate when litigants do not comply with electronic discovery requests and engage in the destruction of relevant documents and data. For more information about plaintiff ESI production and how to properly preserve and produce evidence for class action lawsuits and multidistrict litigation, call us at 888-313-4457.