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When Spoliation Gets Found Out

By Pamela Jones et al.

You have to read this. Do you remember when SCO tried to accuse IBM of spoliation, albeit unsuccessfully? If so, you will enjoy reading this ruling, where a New York judge actually agreed with a plaintiff that the defendant had deliberately destroyed computer evidence. It's a case from the Eastern District of New York. That would be either Brooklyn or Central Islip. It's hard to be sure without checking outside the four corners of the order, because quick checks on the companies mentioned in the order turn up nothing at all for most of the names and the only info on the one I could find anything on shows that the company has changed name servers 23 times in five years and is now on servers in Las Vegas, if you know what I mean, despite being apparently in Ramapo. So that would indicate Central Islip.

When I read it, the first thing that entered my mind was that it's a warning not to use IE or Windows. But really it's more a warning about how hard it is to spoliate evidence in the digital age and get away with it. You should never destroy evidence anyway, whether someone will catch you or not, but I couldn't help but wonder how these folks, assuming the judge is correct, thought they could get away with it. You'll note the alibi in what the judge writes.

If you are a lawyer, you most especially need to read this, particularly if you or your clients use Microsoft Windows. It's a clear cautionary warning about the lack of privacy in proprietary software. There may be a way to cover your tracks in Windows, but self help, even clever self help, isn't likely to work. How, I asked myself, could these folks not know that IE keeps a record of sites visited? Actually, if I was their lawyer, I'd probably have argued that it indicated the alibi was truthful, that they did know and were obviously not trying to cover up any misdeeds. Well. Maybe.

It's a ruling in a situation that involved a motion for sanctions, then, one which was granted based on evidence the judge ruled indicated deliberate efforts to avoid discovery. The sanctions granted were a default judgment and having to pay some of the other sides' legal fees and costs. No punitive damages were granted. You'll also see that discovery went on for five years, just in case you thought such things only happen to SCO. And notice how some judges are becoming more clueful when it comes to computers. Personally, I find that encouraging. But what I want you to focus on is how the party got caught. To me, anyway, it's funny. It's a geek thing, I guess.

Full post as published by Groklaw on October 26, 2008 (boomark / email).