Commercial Litigation and Arbitration

Can a Computer Crash Constitute Spoliation?

Maybe. Plaintiffs’ counsel in Thompson v Jiffy Lube Int’l, Inc., 2007 U.S. Dist. LEXIS 13078 (D. Kan. Feb. 22, 2007), was unable to comply with court-ordered discovery because, in counsel’s words, ‛in December 2005, my hard drive crashed and I lost a lot of data that had not been backed up and [the data at issue] were there.“ The defendants contended the plaintiffs' failure to back up this information amounted to spoliation. The Thompson Court reserved the issue for future determination, but its analysis is appropriately ominous. There is little doubt that a failure to act reasonably to preserve relevant evidence may subject counsel or client to spoliation sanctions, and there is no reason why this analysis is inapplicable to a failure to take reasonable precautions to preserve relevant evidence that exists only a laptop. It’s not as though anyone who owns a laptop lacks a disaster story or two.

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