Defendant Ordered to Pay for Plaintiff’s Forensic Examination of Hard Drive
In TLS Management and Marketing Services, LLC v. Rodriguez-Toledo, et. al., Case No. 15-2121 (D. P.R., Mar. 27, 2017), Plaintiff sued Defendants for violations of the Electronic Communications Privacy Act and various Puerto Rico statutes. Defendant Rodriguez-Toledo is a former employee of Plaintiff who allegedly, with the other defendants, stole clients from Plaintiff and also stole confidential information from Plaintiff. During discovery, Plaintiff filed a motion for sanctions, alleging that Defendants had destroyed important ESI located on Defendant Rodriguez-Toledo’s laptop, iPhone, and external hard drive after the case was filed and after receiving a litigation hold letter.
The court looked to FRCP 37(e), which permits the courts to impose sanctions if a party permanently loses ESI that should have been preserved in anticipation of litigation because of the party’s failure to take reasonable steps to preserve the ESI. The sanctions can be no greater than those necessary to cure the prejudice to the moving party, but if it is shown that the spoliating party acted with intent to deprive the other side of the evidence, the court may presume that the lost information is unfavorable to the spoliating party and order an adverse inference instruction. To show prejudice, the moving party must provide plausible, concrete suggestions about what the destroyed evidence might have been.
Defendant Rodriguez-Toledo admitted that he discarded his laptop in November 2015, after the case was filed, because it was malfunctioning. He also wiped his external hard drive after transferring its data to a flash drive, which he produced to his attorney. He then said that he lost his iPhone inadvertently. Plaintiff argued that the laptop may have contained relevant information because Defendant used it to access Plaintiff’s confidential information. Defendant made no attempt to preserve the ESI on the laptop before discarding of it.
The court found that Plaintiff could not show spoliation with respect to the iPhone, because Plaintiff put forward no evidence that Defendant acted intentionally. However, the court did find that spoliation had occurred with respect to the laptop and hard drive. The court was persuaded by Plaintiff’s arguments about what the hardware might have contained, and the court also found that, based upon the timing of the destruction, Defendant acted with intent to deprive Plaintiff of potentially relevant ESI. The court ordered an adverse inference instruction as to the laptop, as there was no way to recover all the ESI. The court also ordered that Defendant would pay for Plaintiff’s expert to conduct a forensic examination of the hard drive.