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Crashed Computer, Disappeared ESI, Lost Hard Drive: What Sanction is Warranted?

Posted on August 14th, 2013

Dismissal of a claim or counter-claim is the harshest sanction a court can impose. (Although monetary fines can certainly be painful!) Would dismissal of a claim be warranted in the following situation? Let’s examine the facts.

In Altercare, Inc. v. Clark, C.A. No. 12CA010211 (Ohio Ct. App. June 28, 2013), Clark was terminated from her position as CEO in March 2008. Less than a month after her termination, in April 2008, her attorney send a demand letter to her former employer. The letter also informed Altercare of its legal obligation to preserve relevant evidence, including any electronically stored information (ESI). Altercare filed suit against Clark, and Clark filed her own counter-claims. In April 2009, Clark formally requested all ESI mentioned in the demand letter, including a copy of the hard drive for her work computer, which had been and always remained in Altercare’s possession and control.

In July 2009, the court ordered Altercare to produce the ESI requested. In September 2009, Clark and a plaintiff computer forensics expert came to inspect the hard drive, only to be told that the computer “crashed” and was “unavailable.”  In November 2009, Altercare’s own expert informed Clark and the court that it recovered 99 percent of the data from the crashed computer. However, Clark asserted the electronic data provided was not correct.

In May 2010, the parties met with the court and it was agreed they would deterimine cost effective means to recover the data. In August 2010, Altercare admitted it had not yet reviewed the data from its own expert. In October 2010, Clark reported to the court that the data was not from her old computer, but from a different computer. In November 2010, Altercare send over another hard drive, claiming that one was Clark’s old hard drive. (Guess what—it wasn’t.) Altercare never produced the computer or the correct hard drive.

Clark filed a Motion for Sanctions for Altercare’s spoliation and failure to provide the ESI, which it had a duty to preserve. So what sanction is proper here? We will review the Ohio Appeals Court reasoning and decision in our next blog!

ILS – Plaintiff Electronic Discovery Experts

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