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Court Imposes Sanctions After Forensic Examination Uncovers Scrubbed Files

Posted on November 11th, 2015

The District of Maryland recently awarded attorneys’ fees and other sanctions in favor of education and training giant Kaplan. In Ericksen v. Kaplan Higher Education, LLC, Case No. 14-3106 (October 21, 2015), Plaintiff, a former employee, sued Defendant Kaplan for wage and hour violations as well as wrongful termination. In support of her complaint, Plaintiff included an email from a supervisor and a letter from another supervisor. Defendant requested copies of the letter and email in native format; Plaintiff produced several different versions of the letter; Defendants could not locate the email on their servers. Defendant requested forensic examination of Plaintiff’s personal computer and hard drive, and she agreed.

The forensic examination revealed that Plaintiff, two days prior to the forensic examination, ran several programs that are used to scrub files, which deleted over 400,000 files from her hard drive. Defendant demanded that Plaintiff dismiss her complaint, and she refused, denying any wrongdoing, even though Defendant proved that some of the programs used required that the user check certain options regarding destruction of files. A PDF version of the letter was recovered, but it appeared to have been created by Plaintiff. She continued to deny any wrongdoing.

The court found that Plaintiff did run the file scrubbing programs. It could not find that she fabricated the letter and email, but held that Defendant could not prove fabrication because of Plaintiff’s actions. The court found that Plaintiff’s acts resulted in the destruction of relevant information in her control. The court also found that while Plaintiff may not have acted in bad faith, and thus did not order the sanction of dismissal, she did act willfully and deliberately. Therefore, the court ordered that the letter and email be excluded from evidence, that Defendant could present evidence of Plaintiff’s behavior to the jury, and that Defendant was entitled to attorneys’ fees and costs incurred in drafting its letter requesting sanctions.

ILS – Plaintiff ESI Discovery Experts

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