In Ensing v. Ensing, et. al., Case No. 12591 (Del. Court of Chancery, Mar. 6, 2017), Plaintiff and Defendant Ensing were at one time married, and at the time, they owned together an Italian vineyard with a winery and hotel on the property operated through two Delaware limited liability companies. Plaintiff was a member of one LLC and not the other; Defendant Ensing was not a member of either LLC. Plaintiff’s husband took actions to remove her as manager of one of the entities and “engage in a series of transactions to divest” her of her interests in the winery and hotel, and she filed this declaratory action to determine the rightful ownership and management of the entities.
As part of his evidence in the case, Defendant produced a Pledge Agreement and a Trust Agreement purportedly executed by Plaintiff and Defendant. Plaintiff denied ever signing the agreement and attacked the authenticity of the document. Plaintiff sought production of computers, drives and other ESI storage devices, and the court was forced to compel by court order that such items be delivered to a third party vendor. Throughout the case, Defendant defied court orders and repeatedly undermined the court process while continuing to argue that the Pledge Agreement and Trust Agreement were evidence in his favor. However, on the eve of trial, he attempted to distance himself from both documents. Despite that, Plaintiff offered evidence that the company stamp appearing above her name on the Pledge Agreement wasn’t created until 2015, but the document was created in 2012. Further, her forensic computer expert testified that the metadata on the PDF version of the Pledge Agreement showed that it was created on May 27, 2016 using a Mac OS released in 2015. The metadata revealed that three versions of the document should exist – the original from which the PDF was created, the digital copy of the scanned original, and a version saved in preview mode. Defendant did not produce any of these versions despite a court order to do so. The Trust Agreement’s metadata also revealed that it was created in 2016 and emailed to Plaintiff 30 minutes later. The expert opined that the way the documents were created did not make sense unless you were trying to hide metadata in the original that you did not wish to pass on. However, the devices on which they were created were not preserved.
The court came to the conclusion that the metadata reveals fake documents were made and passed off as authentic. After reviewing all Defendant’s bad conduct, the court determined that judgment in Plaintiff’s favor was warranted and also awarded her fees and costs.