Orrell v. Motorcarparts of America, Inc., Case No. 3:06VC418 (W.D. N.C. December 5, 2007)

Allegedly concerned about confidential personal information on her office-issued laptop computer, the plaintiff in this sexual harassment and gender discrimination suit, with the aid of her husband, had the computer’s hard drive wiped clean with Evidence Eliminator. Standing alone, this was a problem. That problem was greatly exacerbated by the fact that one of the central tenets of her lawsuit was that she was sent hundreds of pornographic and offensive emails by co-workers and customers.

Supposedly, the emails were not forever lost, however, because she had forwarded them on to her home email address and stored them on her computer. Some of them were even forwarded to her husband at his office email address. Not surprisingly, the defendant wanted copies of these emails, and was surprised to learn that plaintiff’s home computer had crashed, leaving her with no way to retrieve the key emails. After taking the crashed computer to two IT consultants, some of the data was retrieved and produced, and then later approximately 10,000 pages of information were retrieved and produced. Any emails that were produced, however, were produced in a format that did not reveal whether the plaintiff was the sender or the recipient.

The defendant filed a motion compelling the production of the home computers as well as the husband’s office computers. Magistrate Judge Carl Horn, III granted the motion as to the plaintiff’s home computer and also granted the defendant’s request for an Order precluding further destruction. In ordering the production, the court properly relied upon the fact that the plaintiff had destroyed evidence:

Moreover, Fed. R. Civ. P. 34 permits a party to “inspect and copy, test, or sample any tangible things” which are within the scope of discovery under Rule 26, including computer hard drives of the computers which generated emails that were later improperly deleted. See Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D.Minn.2002) (permitting "mirror imaging" of a hard drive under Rule 34 in order to retrieve deleted computer records, including email); Simon Property Group L.P. v. MySimon, Inc., 194 F.R.D. 639, 640 (S.D.N.Y.2000) (same); and Playboy Enterprises v. Welles, 60 F.Supp.2d 1050, 1053 (S.D.Cal.1999) (same).

Thus, although forensic examination is intrusive, in some cases it’s warranted.

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