Plaintiffs Have Preservation Obligations Too

For those of us that preach from our eDiscovery soapbox regularly, cases like Olney v. Job.com, 2014 WL 5430350 (E.D. Cal. 2014 are clear Homer Simpson moments. Alas, our work is not done.

The point is this — if you’re going to bring an action, you’d better stop file-deletion programs from running during litigation lest you succumb to spoliation sanctions. This is the conclusion reached in Olney.

Plaintiff downloaded the program “PC Optimizer Pro” in November 2012, two months after retaining counsel and one month after bringing a class action suit for alleged violations of the Telephone Consumer Protection Act (“TCPA”).

When he installed “PC Optimizer Pro” in November 2012, plaintiff manually set it up to run on pre-scheduled days. The program caused data to be deleted from his computer. The court found that the plaintiff should have known that the deleted data would be relevant to the underlying litigation as early as August 2012 when he received the alleged illegal phone calls that gave rise to his claims; nevertheless, plaintiff did not uninstall the program or mirror image his hard drive prior to downloading the file-deletion program.

Additionally, despite warnings in October 2013 from the defendants’ counsel not to delete any computer data and a court order in January 2014 requiring the plaintiff to turn over his hard drive for forensic examination, the plaintiff continued to allow PC Optimizer Pro to run and delete computer data.

The court found willful and deliberate spoliation because the plaintiff allowed the program to run even after the January 2014 court order requiring him to preserve his hard drive. The program ran up to the day the plaintiff was to turn over the hard drive to a neutral expert, undoubtedly influencing the court’s decision to find willful spoliation.

Further, the court noted that the plaintiff was represented by experienced class action counsel that should have known that the plaintiff’s computer likely contained relevant evidence that needed to be preserved. Despite this, counsel did not mirror image the plaintiff’s hard drive or instruct the plaintiff to stop file-deletion programs from running. Ultimately, thousands of files were lost and rendered unrecoverable.

Due to these preservation failures, the court ordered the plaintiff to be subjected to the harshest type of adverse inference, which required the jury to be instructed “that certain facts are deemed admitted and must be accepted as true.” The actual instruction can be found in the full opinion.

To read the full opinion, see Olney v. Job.com, 2014 WL 5430350 (E.D. Cal. 2014). The case has been digested and added to the eDiscovery Assistant™ app under Case Digests — to find it, filter using the title in the search box.

Our Takeaway: Parties must be aware of the programs running on their computer, particularly programs that delete computer data at regularly scheduled intervals. Failure to ascertain whether programs are automatically deleting computer data will not excuse individual plaintiffs from their preservation duties. The result of not uninstalling or stopping file-deletion programs can ring the “death knell” for a party’s case.   Also, once a party anticipates litigation, it may be prudent in certain cases to image one’s hard drive in order to meet preservation obligations.

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