Gutman v. Klein, Case No. 03-cv-1570 (E.D.N.Y. Oct. 15, 2008)

A magistrate judge has recommended default judgment against defendants who tampered with electronic evidence. If confirmed by the judge, this will be the first time the 2nd Circuit has deemed a situation egregious enough to impose these harsh sanctions.

Clearly out of patience after the case’s five years of discovery, Magistrate Levy recommended default judgment be entered against the defendant as well as reimbursement to the plaintiffs of their attorney’s fees and costs associated with discovery disputes. The defendants in this case seem to have found an e-discovery primer then gone out of their way to violate every conceivable rule. The defendants proceeded to download a program designed to destroy a hard drive’s contents; to delete hundreds of files and folders, some with file names identical to those marked “Privileged” or “Confidential” on Klein’s privilege log; to reinstall the Klein laptop’s operating system; to copy onto the Klein laptop’s hard drive over ten thousand files and folders named “Gutman Litigation” and “Copy of Gutman Litigation”; and repeatedly to alter the Klein laptop’s system clock…

Opinion at 16-17.

Many of the stunts in this case are just laughable. For instance the system clock on the laptop in question was changed at least seven times only hours before the scheduled forensic imaging. The imaging occurred on December 8, 2005 but certain files on the hard drive bore time stamps of December 9, 2005. “Because the hard drive image captured the state of the Klein laptop on December 8, 2005, a file bearing an accurate time stamp from the following day could not exist.” Opinion at 8. In addition, an “overwhelming majority of these files bear last written dates that predate their creation dates…” Opinion at 10.

Magistrate Levy found it “unlikely that the changes made to the Klien laptop in the days preceeding its imaging occurred accidently [sic].” Opinion at 11. Thus the spoliation of the laptop was done with a culpable state of mind and the harshest of sanctions was recommended.

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