Boyle, Jane J., United States District Judge
District Court accepted Magistrate Judge’s Findings, Conclusions, and Recommendations that plaintiffs be entitled an adverse inference jury instruction due to defendants’ failure to produce his laptop and the manipulation of data on a separate computer using a bulk file changer.
Plaintiffs filed a lawsuit of unknown nature against company and CEO. After plaintiffs brought a motion to compel discovery, the court appointed a third party computer forensic expert to examine all computers used by defendants during the year 2011.
Based on the expert’s report of its examination, plaintiffs brought this motion for sanctions based on defendants’ manipulation of data on a computer (“computer I”) for purposes of concealing another computer (“computer II”) of defendants that was never produced. The expert stated that someone used a bulk file changer manipulate the metadata of files on computer I. Someone also created a new profile on computer I and then connected an external hard drive and transferred files to the newly created profile on computer I. Defendant then modified the profile’s creation date to make it seem as if the computer profile had been used for over two years in an attempt to conceal computer II buy disguising computer I as computer II.
Defendants testified that they were not in possession of computer II despite the fact that the expert had found (and the court agreed) that computer II had been connected to the defendant’s wife’s computer the day after the court ordered defendants to produce all computers used in 2011. The court found that the acts of manipulating data on computer I for purposes of concealing computer II from production constituted spoliation because it was the “material alteration of evidence.”
The court then considered whether defendants’ acts constituted “sanction-worthy spoliation” under Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772 (N.D. Tex. 2011). Because defendants had a duty to preserve the computers and data, and under the totality of the circumstances, defendants acted in bad faith by altering files with the bulk file changer and attempting to manipulate computer I’s profile creation date.
The court also found that plaintiffs were likely prejudiced because the defendants had still not produced computer II, even though that computer connected to defendant’s wife’s computer using an “IP address within the same subnet and wireless network ID as computer I.”
As a result, the court granted plaintiff’s request to give the jury an adverse inference instruction. The court also awarded plaintiffs $27,500 as monetary sanctions for defendants’ spoliation.
v.
KNIGHT TRANSPORTATION, INC. and George M. Muthee, Defendants
Counsel
Michael F. Pezzulli, Christopher L. Barnes, Jack B. Krona, Pezzulli Kinser LLP, Dallas, TX, for Plaintiff.Michael P. Sharp, Daniel M. Karp, P. Wes Black, Rebecca E. Bell, Fee Smith Sharp & Vitullo LLP, Dallas, TX, for Defendants.
MEMORANDUM OPINION AND ORDER
Position, meaning what position tire it is on what piece of equipment, the equipment number, and what was happening to the tires in the case of this being a tire bank, if it was a previously re-treaded tire, that would have a different disposition than a unretreaded tire, so we would want to know that