Computer Novice May Suffer Sanctions For Spoliation

An order declining to impose sanctions for spoliation of computer evidence was reversed by the Oklahoma Supreme Court. The trial court had applied the wrong standard in imposing sanctions against a plaintiff who had thereafter voluntarily dismissed the action. The plaintiff’s story:

Plaintiff countered that he is anovice computer user who was having problems with his computer becauseit was severely infected with viruses, spyware and adware and that hesought professional help in correcting those problems. He first soughthelp from his friend, Dr. Olson, but Olson was not successful in fixingthe computer problems. Barnett then hired a professional to repair hiscomputer. Plaintiff maintained that at no time were evidentiarymaterials intentionally deleted from the computer and that thecomputer expert was using his expertise in determining what programs torun on the computer.

The record reflects that atleast three kinds of “wiping” software were downloaded onto Barnett’scomputer during the period that Rock Oil was actively negotiating withBarnett’s counsel to obtain the information contained on Barnett’s harddrive. AbsoluteShield File Shredder was used on September 10, 2004 anda file named “cable.doc” was removed. On September 14, 2004, theprograms CyberScrub 3.5 and Window Washer were installed on Barnett’scomputer and the Window Washer program ran several times on that date.The record reflects that the CyberScrub 3.5 program was last accessedon the same date that the motion to compel was granted by JudgeWiseman.

The court did not indicate its approval of the actions of the litigant:

In the case at bar, plaintiff wasaware that his hard drive was the subject of a discovery request. Thewiping software programs were downloaded on plaintiff’s computer at atime when plaintiff’s counsel and defense counsel were actively workingto produce the hard drive for inspection. Then, after plaintiff hadbeen ordered by the court to produce the hard drive for examination,plaintiff hired a computer expert to work on the computer, withoutinforming defendants’ counsel that he was about to have work done onthe computer’s hard drive. Neither did Barnett inform his hiredcomputer expert that the hard drive was subject to a court order. Theexpert testified that he could have produced a “clone” of Barnett’shard drive before working on it, but that Barnett did not inform himthat the hard drive was the subject of a court order.

The trial court had held that only willful violations were subject to sanction. (Mike Frisch)