Computer Crash as Spoliation (Part 3)
Whether a computer crash may constitute spoliation has been discussed in previous posts of June 29 and March 5, 2007. In this installment, the plaintiff in Orrell v. Motorcarparts of Am., Inc., 2007 U.S. Dist. LEXIS 89524 (W.D. N.C. Dec. 5, 2007), was once again not exactly pristine in preserving evidence. Among other things, she used the “Evidence Eliminator” program to wipe clean her work laptop in order, she maintained, to remove her personal information from the computer before she returned to the defendant, after being terminated (use of "Evidence Eliminator" is generally not a close spoliation question). The question of interest in the opinion is whether the crash of another computer of hers constituted spoliation. The Court observed that:
The fact that the Plaintiff's home computer allegedly "crashed" -- as opposed to having been "wiped" as the work laptop was -- in no way eliminates the Plaintiff's burden to do all she could under those circumstances to preserve evidence. Teague v. Target Corp., F. Supp. 2d , (W.D.N.C. Apr. 4, 2007) (electronic information contained on plaintiff's home computer was "clearly relevant" to claims in plaintiff's gender discrimination case; where plaintiff had discarded the computer after it "crashed," court ordered that adverse inference jury instruction was appropriate).
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