A Federal Magistrate Judge recommended the defendants be defaulted and pay attorneys fee in Gutman v. Klein sends a clear message for litigation throughout the US. Regardless of whether the Federal Judge adopts the Magistrate Judge’s Recommendation, it is clear that we will see more headlines like this in the future in state and federal courts. Spoliation of relevant evidence is a serious problem whether the evidence is electronic or otherwise.

What Did the Defendants Do?

Apparently in this 5 year lawsuit the defendants were well-aware of that there was relevant evidence on one of their laptop computers. So the while the plaintiff’s expert waited about two hours at the defendant’s residence to get the laptop, apparently the defendant destroyed the contents of the laptop hard drive. When the laptop was turned over for copying “…it was hot to the touch and a screw was missing from its hard drive enclosure.” Later it was determined that the defendant wiped off relevant evidence from the laptop hard drive by manually deleting files, and reinstalled Windows XP to try to cover his tracks.

Role of Forensic Review

My friend Erin Nealy Cox who is a Managing Director and Deputy General Counsel at Stroz Friedberg sent a story about this case since the Magistrate Judge appointed Stroz Friedberg as a Forensic Expert to analyze the laptop hard drive. Ultimately the Stroz Friedberg Expert Report demonstrated what the defendant had done. It seems clear that intentional destruction of the contents of the laptop hard drive was spoliation, and since +95% of all information is now electronic it seems likely that we will see more cases where parties intentionally destroy relevant evidence. Also it seems clear that courts will appoint Forensic Experts and Special Masters to assist them in analyzing electronic evidence. Having served as a Special Master in cases for more than 20 years it clear that a Special Master can represent the Court best in these types of cases where the parties’ experts cannot since they offer opinions generally in favor of their clients.

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