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Adverse Inference Sanction Ordered Following Defendant’s Intentional Spoliation of ESI

Posted on March 14th, 2016

In Brown Jordan International, Inc. et. al. v. Carmicle, Consolidated Case Nos. 14-60629 and 14-61415 (S.D. Fla., Mar. 2, 2016), Defendant, an engineer working for Plaintiffs, wrote a letter accusing various of Plaintiffs’ agents and officers of fraud. Plaintiffs, concerned about terminating Defendant and being accused of retaliation, hired an independent investigator to determine whether Defendant could be terminated for cause.

Ultimately, Plaintiffs terminated Defendant.  When he sought return of his personal laptop, Plaintiffs told him that he could only take it if he proved he had paid for it with his own money. Defendant then remotely locked another company laptop, rendering it inaccessible, and throughout the case, refused to provide the password and PIN to unlock it. He also claimed to have lost his personal iPad containing screenshots of emails and claimed to have lost and/or deleted other devices and data “despite the near certainty of impending litigation.” The parties sued each other, and the court consolidated the cases.

Plaintiffs filed a motion for sanctions during the case for spoliation of electronic evidence. The court held an evidentiary hearing and made factual findings but delayed its ruling until trial. The court found that Defendant’s personal laptop containing 2.4 million files had been accessed within 48 hours before he produced his laptop. The court also found that Defendant had lost his personal iPad between his termination and the lawsuits, and had wiped his corporate iPad and restored it to factory settings.  Plaintiffs’ computer forensics expert determined that Defendant had accessed other employees’ emails.

At trial, the court looked to the amended FRCP 37(e) and determined that Defendant had a duty to preserve the evidence, as litigation was reasonably anticipated when he took his actions to destroy data. The court found that Defendant was familiar with preservation of electronic data based upon his background and that he knew or should have known he had a duty to preserve. The court found that Defendant acted with intent to deprive Plaintiffs of the information. Accordingly, the court ordered an adverse inference instruction to be read to the jury.

ILS – Plaintiff eDiscovery Experts

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