Ralph Losey
eDiscovery Team

A district court judge in Connecticut recently rejected defendant’s explanation as to why the hard drives of key employees contained only zeros, and imposed sanctions for spoliation. Jane Doe v. Norwalk Community College, 2007 WL 2066496, 2007 LEXIS 51084 (D. Conn. July 16, 2007) … The plaintiff is a student alleging her college was negligent in its retention and supervision of a professor who sexually assaulted her. The now “former professor” is also a defendant, but with no legal representation. The student was permitted to file suit as “Jane Doe” to protect her privacy.

After two years of litigation Jane Doe persuaded the court that the college was withholding electronic evidence. The school was ordered to produce the computers of key witnesses for inspection [which] showed that several of the computers had no data, they were literally all zeros.

Jane Doe’s next move was to file a motion for sanctions based on spoliation of evidence. She alleged that “the hard drives of key witnesses in this case were scrubbed” or “completely ‘wiped’ of data.” This led to a flurry of affidavits by Doe’s expert witness and the counter-expert used by the college … Of course, the experts did not agree. [NCC] came up with a laundry list of excuses for why two computers were “full of nothing.” [They] tried saying it was the wrong computer, then that it was not wiped at all, just imaged. Then, as a last resort, he settled on the best excuse of many an IT Tech, that the “all zeros” problem was simply the result of “computer failure” …

In the end Judge Hall granted Jane Doe’s motion, and awarded an adverse jury instruction based on the grossly negligent failure of the college to preserve ESI. She also awarded Doe her expert witness’s costs …