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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.
Throwing Computer In Dumpster Not Way To Handle e-Discovery
Posted by Gregg Mayer on Monday, March 10th, 2008
A federal district court judge recently affirmed a $99,000 sanction and an adverse inference instruction against an individual and his company for purposely throwing a computer into a dumpster after becoming aware it was needed for litigation.
This odd case demonstrates the wrong way to handle a request for electronically stored information (“ESI”).
In APC Filtration, Inc. v. Becker, APC sued Becker for use of proprietary information and contacts that Becker gained while employed at APC. Becker had gone to work with SourceOne, a competitor of APC’s.
During the litigation, APC requested all communications between Becker and SourceOne, including email communications. Becker responded that he had communicated with SourceOne over email, but he no longer had those communications.
Pressed to explain, Becker at first said his personal computer crashed and any email messages were irretrievably lost. Later, Becker admitted he took the personal computer to a construction site some 20 miles from his home and threw the computer into a dumpster.
Unhappy with this turn of events, the magistrate judge in an October 12, 2007 opinion outlined the timeline of the litigation to explain Becker had proper notice that he should have preserved the computer:
APC’s complaint was filed on March 15, 2007…Becker admits to throwing the computer away sometime after March 21, 2007…In this case, Becker had notice [to preserve the computer] based on the nature of APC’s allegations that the computer could become part of the discovery process.
…
The Court specifically finds, in light of what Becker did (traveling 20 miles to dispose of the computer in a construction site Dumpster) and when he did it (within days of receiving notice of APC’s lawsuit), that Becker acted in bad faith in order to prevent APC from discovering potentially damaging evidence.
Consequently, the magistrate agreed to impose sanctions for spoliation. First, the magistrate agreed to deem it “conclusively proven” that Becker communicated with SourceOne while Becker was still employed at APC, and that Becker tried to solicit business for SourceOne rather than APC while still employed at APC. Moreover, the magistrate imposed monetary sanctions of $99,462 to pay for APC’s attorney fees and expenses.
Since this opinion came from a magistrate judge, who generally handles preliminary aspects of litigation, including discovery, Becker and SourceOne appealed the monetary sanctions to the federal district court judge.
On Feb. 25, 2008, the federal district judge affirmed the magistrate’s sanctions.
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