Court Orders “Dead” Computers be Brought Back to Life by Forensics Experts
Expert computer forensics has received a lot of attention in civil litigation lately, as parties are realizing that deleting files may not be as permanent as they otherwise thought. In an interim memorandum and order dated August 5, 2013 in the case Net-Com Services, Inc. v. Eupen Cable USA, No. CV 11-2553 JGB(SSx)(C.D.Cal. 2013), plaintiff filed suit on February 8, 2011 and one of plaintiff’s employees, Steve Moffatt, admitted in deposition that he was responsible for the custody and control of certain relevant financial records. Net-Com had ceased business operations in October 2011, around the same time Moffatt rented out his house, which stored Net-Com’s computers and records in his home.
Despite his claim that he instructed the renters to not throw anything away, Moffett claimed everything was in dumpsters when he came to check on the house. A few hard drives were retrieved from the dumpsters while other data was “lost or stolen,” and the hard drivers were alleged to be “dead.”
The court noted that even by taking Moffett at his word that the destruction of electronic data was not willful or intentional, it remained negligent. Net-Com and Moffet filed suit only seven months prior to the hard drives being thrown in the dumpsters, and the plaintiff complaint alleged that the company lost millions of dollars due to the actions of defendant. Therefore, the financial records of Net-Com were highly relevant to the litigation, and its own complaint placed such records in issue.
The court ordered Net-Com to produce the “dead” hard drives that contained potentially relevant electronically stored information (ESI) to the other party’s computer forensics expert. Net-Com was ordered to pay the full costs and expenses or restoring and producing the data. Noting that is was not yet clear the extent of prejudice suffered by Eupen Cable, the issue of further sanctions was tabled until the computer forensics expert restored the hard drives.