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Court Weighs Terminating Sanctions After Party Uses “Disk Wiping” Software To Delete Files

Posted on August 27th, 2015

The U.S. District Court for the Western District of Washington recently considered whether to dismiss a case as a sanction for discovery abuses in Watkins v. Infosys, Case No. 14-0247 (W.D. Wa., July 23, 2015).

Plaintiff sued her former employer for discrimination. In interrogatory responses, Plaintiff stated that she had not removed anything from Defendant’s premises and that she had followed litigation procedures to avoid spoliation and had preserved data back-up tapes. Defendant hired a computer forensic expert who concluded that Plaintiff had searched the internet for the phrase “disk wipe” and had installed a drive-wiping software onto her work computer before she sued Defendant. According to the expert’s analysis, Plaintiff had run the program and wiped files and folders from her work computer hard drive and eleven external drives (all of which the expert concluded had been connected to her computer before the wipe). Defendant sought terminating sanctions, requesting that the court dismiss Plaintiff’s case.

In her deposition, Plaintiff testified that she used the wiping program “out of concern for information preservation and client confidentiality.” Plaintiff refused to turn over the wiped contents, asserting that Defendant already had the information and that records not previously produced were not relevant (an explanation that the court found “both illogical and unbelievable”.) She also indicated that she planned to replicate the documents that she had obtained and would provide them to Defendant, to which the court responded that a promise to produce the evidence does not remedy the misconduct Plaintiff had already committed.

The court considered the appropriate sanction for the misconduct, observing that the sanction of dismissal requires the court to weigh i) the public interest in quick litigation, ii) the court’s needs to manage its dockets, iii) the risk of prejudice to the party seeking the sanctions, iv) public policy in favor of deciding a case on its merits, and v) the availability of less drastic sanctions (citing Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 1995).) The court concluded that, while Plaintiff’s behavior presented a “close call,” Plaintiff’s behavior did not warrant complete dismissal, and that the court would instead decide the case on its merits (indeed, the court granted summary judgment in favor of Defendant). Rather, the court issued a show cause order requiring Plaintiff to show why the court should not sanction Plaintiff monetarily for the discovery misconduct.

ILS – Plaintiff Electronic Discovery Experts

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