Friday, November 14, 2008
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 a novice computer user who was having problems with his computer because it was severely infected with viruses, spyware and adware and that he sought professional help in correcting those problems. He first sought help from his friend, Dr. Olson, but Olson was not successful in fixing the computer problems. Barnett then hired a professional to repair his computer. Plaintiff maintained that at no time were evidentiary materials intentionally deleted from the computer and that the computer expert was using his expertise in determining what programs to run on the computer.
The record reflects that at least three kinds of "wiping" software were downloaded onto Barnett's computer during the period that Rock Oil was actively negotiating with Barnett's counsel to obtain the information contained on Barnett's hard drive. AbsoluteShield File Shredder was used on September 10, 2004 and a file named "cable.doc" was removed. On September 14, 2004, the programs CyberScrub 3.5 and Window Washer were installed on Barnett's computer and the Window Washer program ran several times on that date. The record reflects that the CyberScrub 3.5 program was last accessed on the same date that the motion to compel was granted by Judge Wiseman.
The court did not indicate its approval of the actions of the litigant:
In the case at bar, plaintiff was aware that his hard drive was the subject of a discovery request. The wiping software programs were downloaded on plaintiff's computer at a time when plaintiff's counsel and defense counsel were actively working to produce the hard drive for inspection. Then, after plaintiff had been ordered by the court to produce the hard drive for examination, plaintiff hired a computer expert to work on the computer, without informing defendants' counsel that he was about to have work done on the computer's hard drive. Neither did Barnett inform his hired computer expert that the hard drive was subject to a court order. The expert testified that he could have produced a "clone" of Barnett's hard drive before working on it, but that Barnett did not inform him that 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)