Update: I've placed a link to the case in the write-up
In Taylor v. Mitre Corp., 2012 U.S. Dist. LEXIS 162854 (E.D. Va. September 10, 2012), the plaintiff in an employment related suit (FMLA and ADA claims), through "egregious spoliation conduct" - use of CCleaner, Evidence Eliminator, and a sledge hammer - had his suit tossed out and forfeited his claims.
The action was brought before the court on a Motion for Sanctions, filed by the defendant, after Mitre Corp. discovered (through a court ordered forensic examination of the plaintiff's computer) that the defendant had knowingly deleted large swaths of files on his new computer. The plaintiff was also requested to produce an old HP laptop that he had used during his employment with Mitre and which had significant litigation related information on it. The plaintiff, however, indicated that he had tried to back up the computer, only getting 30-40% of the files off, before taking a sledgehammer to the computer and taking it to the dump.
Aware of the plaintiff's new Dell computer, the court ordered a computer inspection of the Dell to discover any related evidence. The court described what happened next:
E-mails between Plaintiff and his counsel illustrate Plaintiff's frustration with the Court's consideration of a mandatory computer inspection. For example, on May 30, 2012, in an e-mail to counsel, Plaintiff said, "As a computer expert very familiar with forensic examinations, I find this overly invasive and unwarranted" and that he and his wife would "not submit to a voluntary submission of [their] electronic devices without a court order." Plaintiff goes on to say that if his counsel returned with a court order requiring inspection of his laptop he "will either not provide the devices or [he] will move all non-sensitive files to a CD and wipe the drive." . . . At the conclusion of the e-mail he jokes that "an electrical surge just fried my computer and a 50 pound anvil fell over and landed on it" and asks "what penalties [he would] suffer from a contempt of court citation."The attorney client emails above were discoverable due to the fraud exception to the privilege. After the court order was clarified to fall under FRCP 34, a forensics firm conducted a keyword search on the computer, but the defendant refused to allow it to be imaged.
The forensic company then ran various forensics programs on the computer and discovered a plethora of evidence showing the plaintiff's spoliation activity. The day the plaintiff heard about the court order for inspection, he bought Evidence Eliminator, which overwrites files on the computer to make them unable to be recovered upon forensic examination. However, the plaintiff did not make any attempt to remove the program after using it, so it was easy to confirm he had in fact done so. Additionally, he had run CCleaner (which cleans temporary internet files), to destroy additional evidence, to the tune of approximately 16K files being deleted. Finally, in another effort to avoid discovery, he used Private Browsing to ensure browsing history would be erased when the browser was exited.
The court was not pleased, and dismissed the case and ordered forfeiture of the plaintiff's claims - the harshest sanction possible. This was a ruling based on all of the activities the plaintiff took, willfully to destroy evidence - taking a sledgehammer to the old PC, using CCleaner, private browsing, and most especially, using Evidence Eliminator. With regard to the latter, the court stated:
This Court cannot, and will not, tolerate the use of such a program by a plaintiff in litigation—in the middle of the discovery—who had knowledge that his computer was about to be searched pursuant to a Court order. The undersigned Magistrate Judge concludes that downloading and running of Evidence Eliminator just days after finding out about the Court-ordered computer inspection constituted willful spoliation of evidence.The court went on to say that the conduct noted above highly prejudiced the defendant, and to let the suit proceed after such willful conduct, would be to the detriment of the defendants.
My question is - how could a self-described computer expert not know he would get caught?