Your computer can “testify” against you even when it’s in the landfill

I’ve written about electronic evidence before, in a post that will be featured in the upcoming 2007 edition of Blawgworld:

Electronic Evidence: Who Benefits the Most, Employers or Employees?

Now here’s a story that illustrates a major danger being exposed as the electronic evidence tsunami sweeps over the legal landscape:

“Spoliation” of evidence and the possibility of an “adverse inference instruction.”

Reporting on the case of Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007), Electronic Discovery Law, a blog published by the law firm Kirkpatrick & Lockhart Preston Gates Ellis LLP, tells this story:

In an employment case, the plaintiff’s job-search efforts became relevant. The company learned that from December 1995 until August 2004, she had owned a home computer used to conduct an online job search. She had also used it for emails regarding her termination and discrimination claims.

The plaintiff discarded this computer about a year after retaining counsel and filing her discrimination charge with the EEOC. She claimed she did so because it “crashed,” but admitted she never took it to any type of computer professional to see if it could be repaired.

Here, the technologically astute reader wonders: Why on earth would she do so, throwing good money after bad trying to repair a nine-year old obsolete machine?
Because the law required her to preserve the evidence it contained, that’s why.

The court found that the plaintiff had committed spoliation by discarding the computer containing evidence directly related to her lawsuit after retaining counsel and filing an EEOC charge.

The court ordered an “adverse inference instruction,” allowing the jury to find that the missing evidence was adverse to the plaintiff’s position in the case.

Source:

Plaintiff’s Disposal of “Crashed” Home Computer Warrants Adverse Inference Instruction : Electronic Discovery Law