Spoliation Sanctions Sought After Police Department “Wipes” Computer Metadata from Police Car
In McCabe v. Gonzalez, Case No. 13-0435 (D. Idaho, Sept. 25, 2015), Plaintiff sued Defendant, a police officer, for violations of the Fourth Amendment based upon his arrest for possession of drugs. During the suit, Plaintiff subpoenaed the police department and dispatch for, among other things, the metadata from the onboard computer in Defendant’s squad car. The police department responded to the subpoena, but did not produce the metadata. Plaintiff filed a Motion for Contempt, also alleging spoliation.
With respect to the metadata, the police department responded that the onboard computer that had been in Defendant’s squad car either no longer existed, or that if it did, the department no longer knew its location as it frequently transferred such computers between vehicles. Further, even if found, the department stated that it had implemented a software update a year after the arrest that wiped clean all of the department’s onboard computers.
The court found that the department had no duty to preserve the evidence, because it had wiped the onboard computers “long before” Plaintiff filed his case and long before the department knew of the case against Defendant (who no longer worked for the department). Accordingly, the court denied the motion, holding that a subpoenaed person or entity cannot be held in contempt for failing to produce documents that did not exist at the time the subpoena was issued.
Plaintiffs with claims that may be supported by electronic evidence must act quickly to file their suit. Government entities as well as private companies often have document retention policies that include deleting files or wiping computers after a certain amount of time.