analyze Mr. Klein's hard drives for evidence that Mr. Klein (a) visited the web sites listed in the deletion log (specifically www.ntfs.com), (b) downloaded a program which can delete files so they are not recoverable, (c) changed the name of the program and then deleted it and (d) subsequently deleted files.
[e]very one of the 6,639 files and folders within the folder named “Gutman Litigation” ... bears a create date of November 22, 2005 between 7:10 p.m. and 7:24 p.m., including the folder “Gutman Litigation” itself. Every one of the 6,639 files and folders within the folder named “Copy of Gutman Litigation” bears a create date of November 23, 2005, between 11:28 a.m. and 11:39 a.m ., including the folder “Copy of Gutman Litigation” itself. The system clock analysis establishes that the clock was set to these time periods on December 8, 2005 between approximately 2:00 a.m. and 4:00 a.m.
[a]n operating system was installed on the Lap Top [sic] Hard Drive during the period immediately preceding December 8, 2005, by Pinchas [sic] Ungar [ (“Ungar”),] who was hired by Klein .... [Klein] only found out about the methods once an issue was raised in court regarding the ‘Kill Disk’ program having been utilized prior to imaging.
*7 (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the [evidence was] destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
I [Klein] told him [Ungar] about a dispute, someone has to get some information from whatever is on the computer .... I told him that somebody needs the document for a case that we are fighting about. What his [Ungar's] interpretation of it [sic], I don't know. I didn't tell him exactly why, but I told him it's in the case, a dispute with someone.
End of Document.