Commercial Litigation and Arbitration

Employee’s Running Standard Outlook Cleanup Program Before Exiting Company Does Not Give Rise to Spoliation Inference; Deletion of Images from Web Surfing Not Suspicious

In Thermodyn Corp. v. 3M Co., 2008 U.S. Dist. LEXIS 106804 (N.D. Ohio Dec. 17, 2008), the plaintiff employer sued a former employee (Kaufman) for allegedly stealing trade secrets and providing them to a competitor of his former employer (3M):

[Plaintiff] Thermodyn argues the [adverse] inference is appropriate because Kaufman deleted some e-mails and files from his Thermodyn laptop during October 2004. In Ohio, the elements of a spoliation claim are:

"(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts." Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., 575 F. Supp. 2d 837, 840 (N.D. Ohio 2008) (quoting Smith v. Howard Johnson, 67 Ohio St. 3d 28, 29 (1993)). "[W]illfulness contemplates not only an intentional commission of the act, but also a wrongful commission of the act." Id.

The e-mail deletions occurred when Kaufman ran a "cleanup" program in Microsoft Outlook Express before he left Thermodyn. The cleanup program is a standard function of the Outlook Express program and is run periodically by the user to keep the computer operating efficiently. Kaufman returned the laptop at his departure, and the laptop has been in Thermodyn's control ever since. (In fact, Jeff MacMillan, vice president at Thermodyn, has been using it.) When litigation began between the parties, Thermodyn took the laptop to a forensic computer expert who concluded the Outlook Express cleanup program was run eight times during a five-day window in October 2004. The expert was able to determine that the program deleted 389 e-mails from Kaufman's outbox.

The forensic expert also concluded that Kaufman deleted a number of unknown data files and e-mails from his computer during the course of his use of the laptop. However, as Defendants point out, the deleted files are mostly images and instructions downloaded during Internet surfing and were deleted during normal computer upkeep. Four types of Internet files (.aspx, .js, .htm, and .html files) account for nearly half of the 132,336 files. Only 47 of the deleted files are .doc or .xls files — the file types most likely to hold information that could be a trade secret or other damning evidence. Further, Defendants argue most of these files were in fact recoverable at the time Kaufman returned the laptop to Thermodyn and at the time it was submitted for expert analysis. Thermodyn chose not to recover the files.

Thermodyn speculates that because some files were deleted two months before Kaufman left Thermodyn, such files must have been relevant to this litigation and must have been intentionally destroyed in anticipation of Thermodyn filing a suit against Kaufman months later. Conjecture is insufficient, especially when Thermodyn had the means to recover the content of these files. Thermodyn failed to show Kaufman "acted with intent to deprive another of the evidence by deliberately destroying it." Ed Schmidt, 575 F. Supp. 2d at 840. Therefore, Thermodyn's Motion in Limine and request for a jury instruction are denied.

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