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Bad Faith Spoliation Found Where Defendant Discarded Relevant Computer

Posted on April 8th, 2015

In Grady v. Brodersen, No. 13-cv-00752-REB-NYW (D.Colo. Mar. 23, 2015), a copyright infringement case filed in May 2013, the District Court of Colorado entered a scheduling order on February 20, 2014, ordering Defendant to preserve all electronically stored information (ESI), including metadata, and to identify his relevant devices.

On February 27, 2014, Defendant informed the court that his computers contained relevant ESI and that he had taken steps to search for that ESI.  During the next seven months, Defendant failed to produce any documents or disclose to Plaintiff the details regarding his devices or what further steps he took to preserve ESI. In August 2014, Defendant amended his initial disclosures to state that the computer he had owned during the relevant time period had stopped working and that he had discarded it.

Plaintiff moved to compel, and the court granted the motion, ordering Defendant to produce his new computer hard drive for forensic inspection and copying. In Defendant’s deposition a month later, Defendant testified that he had been unable to operate his old computer since July 2013 (two months after Plaintiff filed suit), but that he did not have the computer repaired or copied for forensic evaluation. Plaintiff moved for sanctions, asking the court to enter default judgment for Plaintiff as a sanction, alleging the following in support:

  1. The lost ESI on the discarded computer significantly prejudiced Plaintiff because Defendant’s computer was the only source of evidence regarding the alteration of the copyrighted works in question.
  2. Defendant lied under oath on his initial 26(a)(1) disclosures.
  3. Defendant discarded the computer after litigation arose despite his duty to preserve all relevant evidence.

The court agreed with Plaintiff and found that Defendant had engaged in intentional and bad faith spoliation by discarding his computer. Taking into account the 10th Circuit’s direction to consider the efficacy of sanctions, the court refused to enter a default judgment but instead ordered an adverse inference instruction and awarded Plaintiff reasonable attorney fees.

ILS – Plaintiff eDiscovery Experts

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