In David Mizer Enterprises, Inc. v. Nexstar Broadcasting, Inc., Case No. 14-2192 (C.D. Ill., Aug. 31, 2016), Plaintiff sued Defendant over a former business arrangement whereby Defendant used Plaintiff’s proprietary software for three years in exchange for a fee. Plaintiff granted Defendant the ability to host proprietary copyrighted pages owned by Plaintiff on Defendant’s server. Plaintiff alleged that Defendant continued to use the software after the contract had expired, and the suit alleged breach of contract, conversion and copyright infringement. During discovery, Plaintiff sent interrogatories asking for communications between various employees of Defendant. In response, Defendant stated that that employee Todd Hartsell’s computer had been re-imaged following a system crash in late 2014, and that all documents and data were lost during the re-imaging. Plaintiff filed a Motion for Sanctions for spoliation, arguing that Defendant should have known litigation was imminent as early as December 2012.
Defendant responded that Plaintiff did not depose Hartsell or any of the other employees to learn about re-imaging of a hard drive. The court denied the motion without prejudice. Defendant then filed supplemental discovery responses and indicated that subsequent investigation showed that Hartsell’s computer actually crashed in spring of 2013, not winter 2014. Plaintiff ultimately filed a separate motion for sanctions and raised the issue of the re-imaging of hard drive in the new motion, stating that Defendant’s attempt to “backdate” the computer crash was “suspicious.”
The court found that the supplemental discovery response was adequate to show that the computer crashed before the lawsuit filing and before service of discovery requests on Defendant. Plaintiff did not renew its original motion for sanctions and instead filed a new a motion that did not seek sanctions specifically for the computer. Therefore, the court declined to order sanctions for the re-imaging of a hard drive.