Litigation Support

"Whatever. I told him whatever. I did whatever I felt right to do, whatever.?  These were the evasive and unintentionally comic words of a witness in Gutman v. Klein (Oct. 15, 2008), surely one of the most egregious spoliation cases to find the light of day in a published opinion. In this case from the Eastern District of New York, the judge cites chunks of hilarious testimony to underscore the failure of defendant Klein and another witness, a computer technician related to Klein who performed many acts of spoliation, to persuade him of their veracity.

A pivotal laptop in the case was produced late, hot to the touch, with a screw missing from the hard drive enclosure. Nice of them to provide a clue that something was amiss.

All sorts of data was deleted, the operating system was reinstalled and the computer clock was changed seven times in the hours prior to forensic imaging. Seriously, these people went out of their way to look like bad guys. In this dumb and dumber escapade, an ID was deleted and another created with the apparent intention of making the evidence "hang together," but the result was simply cartoonish and easily unveiled by the plaintiff's forensics experts.

And then there was a missing laptop, which was supposed to be produced, whose theft was never reported to the police. Magistrate Judge Levy barely accorded this claim the time of day, citing the untrustworthiness of Klein's testimony.

The court found that a default judgment in plaintiff's favor was the only remedy strong enough to meet this extraordinary set of facts. Do read the opinion, but not while drinking coffee. I laughed so hard at the testimony that I ended up having to clean my keyboard!

Hat tip to Tina Ayiotis.

E-mail: snelson@senseient.com    Phone: 703-359-0700