How a Case Can Crash and Burn: Why a Litigant Should Not Set Afire a Computer After It Crashes (Preservation 101)

In Evans v. Mobile County Health Department, 2012 U.S. Dist. LEXIS 8530 (S.D. Ala. Jan. 24, 2012) , a magistrate judge sitting in the Southern District of Alabama (Southern Division) was recently faced with the question of whether plaintiff’s intentional burning of a personal computer, which contained discoverable ESI, was worthy of an imposition of sanctions.The defendant, Mobile County Health Department, filed motions to compel discovery and to impose sanctions stemming from plaintiff’s alleged spoliation of critical information and repeated failures to produce discoverable documents and ESI. Based upon the facts and arguments presented to the magistrate, most notably plaintiff Evans’ admission that she destroyed and replaced her personal computer, the Court granted defendant’s motions.

During the discovery phase of plaintiff Evans’ reverse discrimination and retaliation action, defendant requested production of all documents including “all forms of electronically stored information” related to certain allegations in her complaint. This preservation request was mandated in a June 23, 2011 Order. After producing a small and limited amount of documents, Plaintiff was deposed in early September 2011. During this deposition, plaintiff admitted to forwarding relevant materials from her work computer to her home computer. She further admitted to having e-mails on her home computer reflecting her complaints of disparate treatment on account of race. At no time during her deposition did plaintiff give "any hint" that the same personal computer had been destroyed in July or August of that year.

In response to the defendant’s post-deposition motion to compel discovery, plaintiff revealed for the first time that the hard drive on her personal computer crashed and that the 13 year old computer had been replaced. According to plaintiff, the computer was checked by the “Geek Squad” at a local Best Buy store and she was allegedly told to “just buy another computer.” Plaintiff took this advice. However, instead of simply preserving the old computer or turning it over to her attorney, despite litigation being in full swing, plaintiff destroyed it by burning it in her yard a few months before her deposition. Plaintiff’s justification for destroying the computer was to eradicate personal financial records that she could "not risk getting into the wrong hands because of the threat of identify theft." Based upon this newly revealed information, defendant moved before the Court for sanctions, seeking dismissal of all of plaintiff’s claims.

Satisfied that Alabama’s spoliation of evidence standards were consistent with the federal spoliation principles, the Court analyzed defendant’s sanctions motion under Alabama’s five factor analysis set forth in Story v. RAJ Properties, Inc., 909 So. 2d 797 (Ala. 2005) . Given the testimony offered by plaintiff in the deposition and at the motion hearing, the Court determined that the destroyed evidence was important (the first factor), and her culpability (the second factor) was “excessively high.” The Court went as far as to state that “plaintiff’s willful disregard of her obligation to preserve evidence has inhibited the production of evidence that may have been harmful to her case such that whether the spoliated evidence would, in fact, have been detrimental is irrelevant since no one, other that perhaps Evans herself, can know for certain.”

Finding that the facts weighed in favor of the imposition of sanctions, the Court was faced with the most critical question (the fifth factor) –was defendant’s request for dismissal of plaintiff’s claim appropriate or would less severe sanctions suffice? The Court ruled that dismissal was not an appropriate sanction and should be limited to those cases in which “destruction of the evidence has left the defendant in the position that it is unable to defend itself against plaintiff’s allegations.” As plaintiff had produced some critical information during discovery and defendant had access to some information through alternative means (the fourth factor), the Court deemed the imposition of an “adverse inference” charge at the time of trial regarding the destroyed information and an award of attorney’s fees and expenses related to defendant’s motion to be sufficient.  

Evans demonstrates that ESI on one’s personal computer is discoverable and must be maintained — even if the computer is not functioning. Although the Court did not dismiss plaintiff’s complaint outright, Evans sends a strong message that spoliation of ESI, even by individual plaintiffs like Ms. Evans, will not be tolerated, regardless of the alleged justification. In short, the preservation of all known relevant and discoverable ESI, no matter where located, is the best strategy to avoid sanctions. Any other strategy could go up in smoke, as it did for Ms. Evans. 

Robert D. Brown, Jr. is Counsel to the Gibbons Products Liability Department and a member of the Gibbons E-Discovery Task Force.
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