You may have heard how important it is to preserve evidence related to a legal proceeding. Failing to do so can cost you serious amounts of money and might trigger serious evidentiary sanctions that essentially could gut your legal case.
That's why companies and individuals take great care to retain relevant evidence not only in document form, but also electronic evidence. But this is not the end of the story.
The recent case of APC Filtration, Inc. v. Becker provides a classic example of how parties can get it wrong when it comes to maintaining evidence.
In this federal case from Chicago, the plaintiff company, APC Filtration, had asserted trademark misappropriation allegations against the defendants, a competing company and its founder who had previously been the national sales manager for APC. In discovery, the defendants were unable to produce information bearing on contacts between them and a former supplier for APC, and a significant prospective customer of APC. Here is where the plot thickens.
The defendant founder of the competing company, within days of receiving the plaintiff's complaint, disposed of his computer. He did so by taking the device 20 miles away to a construction site to get rid of it in a dumpster.
Doesn't look good, does it? The defendant founder argued that his conduct was proper because he had been told that his computer had crashed and that it was beyond repair.
The judge did not buy this excuse and found that the founder's conduct was in bad faith. The judge also determined that this conduct violated a court order that required production of all records of communications with the plaintiff's former supplier and prospective customer--records that may have been contained on the disposed and destroyed computer.
The plaintiff requested maximum sanctions, including a default judgment against the defendants. The court did not go quite that far, but did order that the defendants had to pay the plaintiff's attorney's fees and costs (which included the cost of a computer forensics expert) relating to the discovery proceedings.
Because evidence on that score was not preserved, the judge, as an evidentiary sanction, also concluded that the defendants sought to siphon away the supplier and prospective customer from the plaintiff.
The judge did not enter a default judgment against the defendants, as requested by the plaintiff, because the plaintiff was able to obtain some of the documents that likely were on the destroyed computer from third parties.
There's a clear lesson here. When faced with potential or actual legal proceedings, it's never a good idea to get rid of evidence. Even if you fear it may hurt your side of the case, don't make a rash--and wrongheaded--decision. You'll only be hurting your chances in court.
Biography Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to ejsinrod@duanemorris.com with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
Don't keep any records at all! You can't produce evidence for the courts if there wasn't any evidence to begin with. Of course, this makes it a little harder to run your business....
It seems to me that providing your own personal PC to the court amounts to the exact same thing as being required to testify against yourself . . . which is unconstitutional, right?
. . . so how is it the courts get away with demanding this now days?
"The defendant founder of the competing company, within days of receiving the plaintiff's complaint, disposed of his computer. He did so by taking the device 20 miles away to a construction site to get rid of it in a dumpster.
Doesn't look good, does it? The defendant founder argued that his conduct was proper because he had been told that his computer had crashed and that it was beyond repair."
Yeah, right. Whenever my computer crashes, I drive 20 miles, tie a cinderblock to it, and toss it in a river.
There was enough b-s in his "reason" to fertilize at least an acre....
Your Honor, my computer was old, and I wanted to get an upgrade. I had no further use for my old system, and being concerned with the environmental damage PC components could have when dumped in a landfill, I took it to a recycling center. Before I ecologically disposed of my old system, I made a backup on this portable drive. (of course, he didn't want a new computer, there was nothing wrong with his old one, he wanted to dispose of evidence, and the portable drive does not have the critical files thereon which are germain to the case)
... when served with an action, the defendant company is required to "quarantine" all relevant information using a "litigation hold" - actually, a secure server to which only the defendent and plaintiff attorney's have access. The hold includes all "records" relevant to the case including personal correspondence (after all, there is no expectation of privacy on a work computer since everything belongs to the employer.)
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This is akin to finding bleach at a crimescene.
Markus Diersbock
SwingNote
. . . so how is it the courts get away with demanding this now days?
Doesn't look good, does it? The defendant founder argued that his conduct was proper because he had been told that his computer had crashed and that it was beyond repair."
Yeah, right. Whenever my computer crashes, I drive 20 miles, tie a cinderblock to it, and toss it in a river.
There was enough b-s in his "reason" to fertilize at least an acre....