In Postle v. SilkRoad Technology, Inc., Civil No. 18-cv-224-JL (D. NH Feb. 19, 2019), the court granted Defendant’s motion for spoliation-related sanctions after Plaintiff intentionally deleted ESI from his work-issued laptop before returning it to Defendant.
Defendant SilkRoad employed Plaintiff Postle in an information-technology role for about fifteen years. In March 2017, Plaintiff began to work for Defendant under contract from his home and remotely accessed Defendant’s computer system. On April 4, 2017, following a hack of its computer systems, Defendant suspended Plaintiff’s work in light of a suspected connection between Plaintiff and the hacker. On April 12, 2017, Defendant requested that Plaintiff return his Dell laptop and Defendant’s attorneys followed up with an emailed letter on April 14, reiterating that Plaintiff return his laptop with the following litigation-related language:
“In addition, we wish to remind you of your obligations with regard to Silkroad [sic] property, which includes the preservation of any information, messages, e-mails, documents or other materials on these devices. You may not destroy or delete any such information on such a device without our express authorization.”
At some point between April 12 and April 17, Plaintiff deleted his user profile from the Dell and restored the device to its factory settings, which Plaintiff testified at a later hearing that he deleted the information in such a way as to render it unrecoverable.
In ruling on Defendant’s motion, the court ruled that Defendant met the threshold requirements of Rule 37(e) showing (1) that relevant electronically-stored information (ESI) has been lost and cannot be restored or replaced through additional discovery; (2) that it should have been preserved; and (3) that it was not preserved because a party failed to take reasonable steps to preserve it. Fed. R. Civ. P. 37(e).
With respect to the intent element of Rule 37(e)(2), which considers “whether the loss of the ESI has caused prejudice or whether the party in possession acted ‘with the intent to deprive another party of the information’s use in the litigation,” the court found that Defendant successfully demonstrated that Plaintiff intended to deprive Defendant of the use of information on the Dell laptop by deleting it and restoring the laptop to its factory default, rendering any deleted information unrecoverable. The Court stated: “Even if [Plaintiff] began deleting the information before he realized that SilkRoad sought the return not only of the laptop but also of the information it contained . . . he continued his deletion activities on the Dell laptop after coming to that realization. Specifically, on April 13, after learning that SilkRoad sought the data from other domain administrators, he texted a former colleague: “They should have asked for that. I am busy clearing off my machines to return them. They are going to be unhappy with the image on my dell as I just deleted my SilkRoad user profile.” Despite [knowing] that SilkRoad sought the information on the laptop as well as the device itself, Plaintiff initiated a factory reset that rendered any remaining data unrecoverable after he sent it.”
Having concluded that Plaintiff deleted ESI from his Dell laptop with the intention of depriving Defendant of its use in litigation, the Court sanctioned Plaintiff with an adverse inference instruction that the court and jury should presume that all evidence deleted from the Dell laptop was unfavorable to Plaintiff. Finally, the Court held that Plaintiff shall bear one-third of Defendant’s reasonable costs and attorneys’ fees associated with the motion.