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New York Plaintiff Sanctioned for Spoliation of Computer, Text Messages, Audio Recordings

Posted on April 5th, 2017

disposing of text messagesIn Simons v. Petrarch LLC et. al., Case No. 158843/2013 (2017 NY Slip Op 30457, Supreme Court of NY, New York County, Mar. 8, 2017), Plaintiff sued her former employer and its owner for alleged incidents during her employment of sexual harassment, retaliation and civil battery. Defendant Petrarch LLC (“Petrarch”) employed Plaintiff from 2008 until her employment was terminated in 2013. Petrarch’s owner, Defendant Aboutaam, alleged that he fired Plaintiff when he decided he no longer needed a personal assistant. After Plaintiff initiated her lawsuit in September 2013, Defendants sought discovery of Plaintiff’s ESI, including computer systems and files. Plaintiff provided a written log of the harassment she alleged, which she claimed was compiled from handwritten notes that she would write throughout the day and then discard after typing them into her computer at home on an ongoing basis.

Plaintiff, however, claimed to have thrown away this computer, although she had it at the time her employment with Petrarch was terminated. She stated that she could not recall the timeline of the computer disposal, and she did not make a copy of the hard drive or any of the computer’s contents. She testified at her deposition that she wrote the existing log summary “from memory.” She claimed to have obtained a new computer prior to filing suit (after throwing away the computer she had at the time she was fired from her employment with Petrarch), but could not produce the receipt for the new computer purchase. Eventually it was determined that the new computer was in fact purchased after she filed suit against Defendants, in March 2014.

Without the prior computer, Defendants argued that they could not determine if the conduct reflected in her logs was what was actually kept at the time of the events, and they filed a spoliation sanctions motion. Defendants argued that her duty to preserve was triggered when she began tracking the incidents for purposes of building a case in 2009. Defendants also accused Plaintiff of deleting recordings she referenced in her logs as well as disposing of text messages.  Plaintiff had produced screenshots of certain messages, but could not produce the remainder of the messages.  After Plaintiff captured the screenshots, she deleted the messages and subsequently threw away the phones. In its motion, Defendants sought a forensic examination of Plaintiff’s email accounts in addition to the sanctions.

The court found that Plaintiff had destroyed the computer with a culpable state of mind as required under New York law for a spoliation finding. Further, because her destruction of the computer was either intentional or grossly negligent, no finding of relevance was necessary. The court further ruled that an adverse inference instruction be given as to the computer and the log, and that all further disputes related to the log would be resolved in Defendants’ favor. The court also granted an adverse inference instruction with respect to the log itself because of the missing audio recordings. Based upon the conduct of Plaintiff and her counsel, the court also permitted the forensic examination of Plaintiff’s Gmail accounts and awarded attorneys’ fees and costs to Defendants.

ILS – Plaintiff eDiscovery Experts

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