Parties sometimes go to great lengths to avoid providing information during discovery. A case out of Mobile, Alabama, shows some people will even go so far as to burn their computer in a backyard BBQ. Evans v. Mobile Cnty. Health Dep’t, 2012 U.S. Dist. LEXIS 8530 (S.D. Ala. 2012).
The plaintiff in this case was a former employee who sued her employer for reverse discrimination and retaliation. Proof of her claims was largely based on a diary she kept on her computer at home. It supposedly documented the wrong-doings at work. After suspicions arose as to the authenticity of her diary productions, the employer requested an examination of the computer. That’s when the plaintiff burned her computer. This case just goes to show how much some people, myself included, love a backyard Summer BBQ. (No word on how the bits and bytes tasted, but I guessing she served it with computer hash.)
Here is the background. Discovery disputes arose concerning e-mails retained in the plaintiff’s personal Gmail account and the diary she kept on her personal computer. She created the diary to document incidents where she was allegedly subject to reverse racism. She sent e-mails from work using her Gmail account to do so. When the defendant requested certain information, including all versions of the diary, the plaintiff responded with vague, inadequate responses, or no response at all.
The defendant suspected that certain items unfavorable to the plaintiff’s position were being withheld. For instance, although the plaintiff said she constantly wrote in her diary, the version she produced had a three-month gap.
At her deposition, the plaintiff did not reveal that she had already burned the computer. In response to a request for inspection of the computer, plaintiff’s counsel did not do so either; he instead just raised legal objections. Only after the defendant filed a motion to compel inspection did the plaintiff respond with an affidavit in opposition explaining inspection would not be possible. In her affidavit, the plaintiff claimed her 13-year-old computer had stopped working just after a production request. Further, she said it would have cost a minimum of $60 just to assess the machine. So she decided to buy a new computer instead, and promptly BBQ’ed her old one.
Plaintiff claimed she burned her computer to protect her personal information, such as social security numbers and credit card numbers, from “getting into the wrong hands because of the threat of identity theft.” At the resulting evidentiary hearing on the destruction of the computer, the judge found the plaintiff’s excuses incredible. He found it unfathomable that she would destroy her computer, instead of saving it, given she was in the middle of pursuing this lawsuit.
Although the plaintiff professed not to know she had a legal duty to preserve the computer, the judge said he gave “very little credence to plaintiff’s testimony … given the ‘whirling dervish’ nature of same.”
The plaintiff spoliator here was not as smart as she thought. Although she destroyed her hard drive in the BBQ alright, her e-mails still existed on the Gmail server, not her hard drive, and she was compelled by the court to give the defendant access to her Gmail account.
The court found that the plaintiff had destroyed her personal computer willfully and in bad faith. However, the court denied the defendant’s request to dismiss the case because the defendant was not in a position where it would be unable to defend itself. The defendant was given access to plaintiff’s Gmail account, which the court assumed would provide it with adequate information to defend the case.
The court held that if the plaintiff survived the defendant’s expected summary judgment motion (which is doubtful, though the litigation is ongoing), the appropriate sanction would be an adverse inference instruction. Nevertheless, the plaintiff was found responsible for the defendant’s attorney fees and expenses related to its spoliation motion.
Britney A. Quow