The plaintiff in Advantor Systems Corp. v. DRS Technical Services, Inc., Case No. 6:14-cv-533-Orl-31DAB (Jan. 28, 2015) alleged spoliation after learning that Defendant had failed to properly preserve data on a laptop at issue in the case. The district court in the Middle District of Florida considered whether to order spoliation sanctions.
Plaintiff alleges that Defendant “poached” Plaintiff’s employee in violation of a non-compete and non-disclosure agreement. When Plaintiff requested that Defendant terminate the employee and preserve all relevant documents and electronically stored information, Defendant did so, but not until after reformatting the laptop that Plaintiff’s former employee had used while working for Defendant.
Plaintiff filed suit and sent a second preservation notice. Both parties hired computer forensics experts to examine the reformatted laptop. Both experts agreed that most of the files were “nearly unreadable” and corrupted but Plaintiff’s expert did independently find names of files that Plaintiff believed may have come from its own computer systems.
Plaintiff’s former employee admitted in deposition and in affidavits that he sent Defendant eight allegedly proprietary documents by email (all of which Defendant eventually returned) but he stated that he did not recall saving any other of Plaintiff’s proprietary documents on the laptop. Defendant stated that it saved all of the employee’s email to its server and produced any relevant emails.
In the 11th Circuit, a court can only order spoliation sanctions against a defendant where it finds, among other things, that the allegedly spoliated evidence was “critical” to proving a plaintiff’s prima facie case, and where the plaintiff makes a showing that defendant acted in bad faith. The court found that while Defendant had a duty to preserve the laptop when Plaintiff sent the first preservation notice (and that it could have easily made a forensic copy if it wished to use the laptop for another employee), Plaintiff put forth no other evidence that the laptop contained its proprietary information. The court discounted Plaintiff’s expert finding that some corrupted files had suspicious titles. The court concluded that it did not appear likely that proprietary files existed on the laptop, and that and even if they did exist, Plaintiff had not made a showing that the employee had shared the files with anyone. The court, thus, denied Plaintiff’s Motion for Sanctions, finding that Plaintiff had not shown that any lost evidence was critical to its claim.