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What Type of ESI Spoliation Led to Dismissal of Plaintiff’s Claim?

Posted on May 23rd, 2014

Many of the spoliation cases we blog about discuss defense-side electronically stored evidence, but plaintiffs can be sanctioned for spoliation as well. For a case where plaintiff’s case was dismissed entirely due to the spoliation of evidence, see Cornelius v. Bae Systems Information Solutions, Inc., Case No. 1:13-cv-00825 AJT/TCB (E.D.Virginia April 24, 2014).

In Defendant’s Motion for Sanctions, it alleged Plaintiff:

1. Engaged in willful and intentional spoliation of evidence after a litigation hold was in effect;

2. Defendant has been prejudiced in its ability to defend the allegations; and

3. The only appropriate remedy to adequately address the prejudice is to dismiss the case.

So what, exactly, did Plaintiff do?

Information obtained from the computer forensic expert’s analysis of Plaintiff’s iPhone and Blackberry uncovered that:

  • Two days prior to the turning over the device, Plaintiff’s iPhone had been “wiped,” and all text messages, call logs, email data, voice mails, internet history, pictures, network activity history, apps, calendars, contacts, applications, social media and video were permanently deleted.
  • Plaintiff’s Blackberry, which he used for two years, was similarly deleted and contained almost no electronic data.

Both these devices were part of the litigation hold notice that was imposed upon Plaintiff before the deletions occurred. In a footnote to the case, the court noted that Plaintiff had “a variety of excuses and explanations” as to why the electronic data was missing. For example, he claimed to not intentionally have “wiped” the devices, but that it must have occurred when he switched out the SIM card. However, the computer forensic expert challenged this testimony and noted that much of this information would not have been on the SIM card, but the internal memory of the device itself. Removal of the SIM card would not have done this.

In light of the computer forensic expert testimony and after finding Plaintiff’s explanations to be meritless, the court dismissed Plaintiff’s complaint and ordered attorney fees and costs to be paid for the Motion for Sanctions, three Motions to Compel and the forensic inspection of Plaintiff’s devices.

ILS – Plaintiff eDiscovery Experts

Did you know? Litmus “Email Analytics” claims 68 percent of Gmail and Yahoo! users’ opens occur on a smartphone or tablet.

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