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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Lightning Lie Results In Sanctions For Spoliation Of ESI
Posted by Gregg Mayer on Monday, March 31st, 2008
As noted here and here on CIOLaw.org, it is never a good idea to try to destroy ESI after a legal hold is triggered creating a duty to preserve the information. Here’s is another example of why:
In Great American Ins. Co. of New York v. Lowry Development, the insurance company Great American wanted to see the personal computer files of Danny Groves, who operated Groves & Associates, which was a party in the litigation. Groves used his personal computer for business correspondence, including sending email, to the insurance company.
At first, Groves said lightning had damaged his computer and it was not repairable. As a result, he said, he just abandoned it with the technician.
Later, apparently forgetting his first response, Groves said he had the computer, but that the motherboard was damaged by lightning and a computer technician told him that all of the files were lost.
The insurance company did the obvious: it called the computer technician. The technician swore in an affidavit that he was able to fix the computer and none of the files were lost.
In response, Groves said what he really did was throw the computer away after it malfunctioned a second time following the repair from the lightning strike. Needless to say, the court had a hard time believing him:
Groves offers no explanation for his untruthful testimony or for his inaccurate and incomplete response to Great American’s request for inspection…I am of the opinion that Great American has established, by clear and convincing evidence, that the destruction of this computer has deprived the parties and the Court of the benefit of any records that may have been contained in the computer hard drive.
Consequently, the court said it would read an adverse inference instruction at trial and lower the burden of proof for Great American on one of its claims.
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