The Five Craziest eDiscovery Cases
1. Evidence Eliminator
Taylor v. Mitre Corporation, Civil Action No. 1:11-cv-1247, (D.C. E.D. Va. 2012),
Plaintiff Taylor, an IT professional, hired counsel in advance of filing an FMLA case against his employer, who advised him he had a duty to preserve relevant information in advance of filing suit. Taylor terminated his relationship with this lawyer and hired different counsel. After filing an EEOC claim, Taylor ran a program called “Evidence Eliminator” on his work computer, took a mallet to it (also referred to as a “sledgehammer” and “hammer” at various places in the opinion), and then disposed of the remains of the computer in a landfill. Taylor subsequently claimed he unsuccessfully attempted to backup all relevant information onto a new laptop, which the court ordered be turned over to the defendant after suit was filed. A forensic expert determined that, after the court's turnover order, Taylor had once again run Evidence Eliminator on his new computer, along with a program called CC Cleaner, both of which are intended to cover the tracks of file deletion. The court determined it was impossible to determine how many files were deleted by running these programs. In dismissing Taylor’s suit as a sanction for spoliation, the court found “without reservation that Mr. Taylor's conduct has been so egregious that it amounts to a forfeiture of his claim.” The moral of this story is that, while tools such as Evidence Eliminator and CC Cleaner may cover your tracks, they create new tracks that can be identified by a forensic examiner.
2. Decryption Key Disaster
U.S. v. Holmes, Case No. 5:18-cr-00258-EJD-1 (D.C., N.D. Cal. 2021),
Former Theranos CEO Elizabeth Holmes attempted to suppress evidence of customer complaints and testing results contained a Theranos-created database called “LIS”, a copy of which was produced to the government pursuant to subpoena. The database required both a password and a decryption key; however, when Theranos produced the database, they only provided the password to the government, and not the decryption key, which was lost when a mere four days later Theranos began decommissioning the database in its possession. Holmes then filed a motion to suppress test results and customer complaints, contending the government “failed to gather and preserve the LIS database” and thus was precluded from using the complaints and test results as evidence of fraud. In addition, Holmes claimed that the government’s failure to collect and preserve the database denied her access to potential exculpatory evidence contained in the database. (The author is reminded of the old definition of chutzpah—killing your parents then throwing yourself on the mercy of the court because you’re an orphan). The court quickly disposed of Holmes’ motion, finding that the government did not act inappropriately with regard to the database since it didn’t ever “possess” LIS because Theranos never turned over the decryption key.
3. Happily Never After
Gross v Chapman, No. 19 C 2743, (D.C. N.D. Ill., 2020.
Love may be blind, but it’s certainly not deaf. In this case, the plaintiffs are a bride to be and her parents; the defendants, the groom to be and his parents. The bride elected to have a “no kids” wedding, angering the groom’s sister, a new mother. The bride to be, cohabiting in the groom’s home at the time, proceeded to vent to her mother over the phone. Unbeknownst to the bride to be, the home’s security system picked up her conversation, and the groom and his father listened in. The families attempted to, ahem, hash out their disagreements, to no avail. The bride and her parents then filed suit in federal court for the approximately $100,000 expended on the wedding. How is this an ediscovery case, you ask? The answer comes down to a battle over text messages, with the bride and her family contending that the groom and his family simply hadn’t produced enough text messages and they were, well, suspicious there were more texts. The court, after noting the significant costs incurred by both parties to date in discovery, determined that the messages previously produced were proportional under the terms of FRCP 26(b)(1), and additional searching and disclosure of text messages was not required.
4. Traffic Violation Fiasco
Guarisco v. Boh Bros. Construction, Civ. Action No. 18-7514, (D.C., E.D. La. 2019),
Plaintiff Guarisco sued a construction company, claiming that her car accident was caused by the defendant’s failure to post a two-way street sign to put her on notice that there would be oncoming traffic. Plaintiff provided evidence in the form of a photograph of the accident site without such a sign. However, defendant’s forensic expert in examining plaintiff’s phone was able to determine that the photograph had been cropped to exclude the sign, and that the plaintiff had further deleted a number of other relevant photographs and videos from her phone that were not supportive of her claims. The forensic expert recovered the deleted photos and videos. The defendant moved for sanctions under FRCP 37(e) for spoliation. The court found that the Electronically Stored Information (ESI) was not “lost” because defendant’s expert was able to recover it, so FRCP 37(e) was inapplicable. However, the court determined that it was able to award sanctions under its inherent power, awarding monetary sanctions to defendant and granting its motion for summary judgment.
5. Pop-secret….or not
And if you think you should be eating popcorn while reading about these cases, how about:
CaramelCrisp, LLC v. Putnam, Case No. 19 c 2699, (D.C. N.D. Ill, 2022).
Anyone who has ever passed through a Chicago airport is familiar with Garrett Popcorn Shops—the name under which CaramelCrisp does business. Putnam was the head of CaramelCrisp’s R&D group and had access to the company’s secret recipes and other company confidential information. She was subject to a Confidentiality and Non-Compete Agreement. Putnam became aware a few days prior that she was to be terminated. After termination, Putnam turned her laptop into CaramelCrisp’s HR department, which passed it on to an internal IT professional who discovered that Putnam had emailed to her personal account confidential recipes, product information, supplier information, pricing and other confidential information and deleted substantially everything from her laptop. When notified that CaramelCrisp was aware of that she had taken confidential information, Putnam forwarded back a number of emails and expressed her intent to comply with the non-compete agreement. CaramelCrisp demanded access to all electronic devices in Putnam’s possession that may contain its data (Putnam declined); and sent her returned company laptop to a forensic examiner. CaramelCrisp filed suit, alleging violation of her non-compete agreement and statutes protecting trade secrets. At this point, an experienced reader of ediscovery cases dealing with spoliation likely expects to read that CaramelCrisp filed a motion for sanctions for spoliation, but that’s not what happened here. Instead, plaintiff Putnam filed the spoliation motion, claiming that by having a company IT representative poking around in the returned laptop, relevant information about the status of the laptop as it was returned by Putnam was lost, rendering the laptop “unreliable evidence”, and seeking dismissal of the suit. The court found that the majority of files CaramelCrisp deleted from Putnam’s laptop were deleted before CaramelCrisp had a duty to preserve the information, and that the remaining few files deleted after the duty to preserve arose were not shown by Putnam to be relevant evidence. However, the court ruled that Putnam retained her right to object to the use at trial of the forensic image of her computer made by CaramelCrisp’s expert on the basis that it was not a reliable copy and thus not admissible in evidence.
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