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Another Day, Another Example of Spoliation in ESI Defense Productions

Posted on October 15th, 2012

As this blog has noted before, instances of electronic data spoliation are becoming ever increasing events in high-stakes class action lawsuits, multi-district litigation and business litigation.  While the motives may vary, in many situations, the missing evidence to be construed against them may be more damaging than the existing evidence itself.

The business litigation case of Multifeeder Technology, Inc. v. British Confectionery Company Limited (2012 WL 4135848 (D. Minn.)) is one of the latest examples of electronic data spoliation, and highlights the decreasing patience by courts for such conduct.

In Multifeeder, the defendant defaulted and cancelled its purchase of a printer system from the plaintiff, claiming the system did not function at the rate it expected. Plaintiff sued for breach of contract, the court entered an ESI Protocol Order, and later granted plaintiff’s motion to compel to the defendant to comply with the ESI Protocol Order.

Six months later, plaintiff moved for a sanctions order for failure to comply with the order to compel and asked the court to order a forensic expert to search defendant’s computers for relevant data. The magistrate judge agreed sanctions were warranted but did not hold defendant in contempt of court, as he did not feel that defendant had acted intentionally or in bad faith. After a failed attempt at settling the eDiscovery issues, the Magistrate judge ordered a third-party computer forensics expert to image and search defendant’s computers and ordered the costs split between the parties.

Did the computer forensics expert find wrongdoing on the part of defendant? (Yes.) More on this case in our next blog.  In the meantime, to learn more about how plaintiff trial attorneys can take steps to uncover evidence spoliation by defendants, review our expert computer forensics services, call us directly at 888-313-4457.

ILS – Plaintiff eDiscovery Experts

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