Oberto, Sheila K., United States Magistrate Judge
In a Telephone Consumer Protection Act (“TCPA”) action, the trial court granted defendants’ motion for spoliation sanctions and awarded an adverse inference instruction after plaintiff installed a file deletion program called PC Optimizer Pro on his laptop after litigation had commenced, and failed to stop the software from running automatically throughout the litigation.
Plaintiff brought a TCPA class action against online career recruitment companies (“defendants”) after receiving telephone solicitations for educational opportunities from a third-party company. While searching for employment, plaintiff entered his telephone number on defendants’ website. Defendants in turn forwarded plaintiff’s telephone number to a third-party educational company that made the telephone calls to plaintiff. There was a factual dispute related to the scope of consent the plaintiff gave while visiting defendants’ websites.
Plaintiff brought suit in August of 2012 and retained experienced class action counsel. On October 4, 2013, while being deposed, plaintiff was instructed not to “take any steps to delete any Web browsing history or any information from that computer and defendants may be requesting access to that through discovery.”
On October 11, 2013, defendants served plaintiff with a Request for Production of Tangible things, which sought electronically stored information (“ESI”) relating to the plaintiff’s job search and access to job-related websites.
On January 10, 2014, the court ordered plaintiff to turn over his computer to a neutral expert for hard drive imaging by January 14, 2014.
Upon inspection of the plaintiff’s hard drive, the neutral expert found that plaintiff had run a file deletion program named PC Optimizer Pro on Janurary 17, 2014. As a result of the program running, thousands of files were deleted and rendered unrecoverable.
The defendants brought a spoliation motion seeking sanctions. Plaintiff argued that he did not have a duty to preserve any data on the computer because the litigation was about telephone calls. Further, plaintiff claimed that even if he did have a duty to preserve computer data, this duty only attached on October 4, 2013 when he was instructed not to delete any computer data at his deposition.
Defendants argued that plaintiff was informed during the telephone solicitations that the third-party had obtained the plaintiff’s telephone number via defendants. One of the defendants’ corporate names was “Job.com.” The defendants claimed that it should have been reasonably apparent to the plaintiff that the telephone calls were related to his online job searching activities.
The court agreed. The court stated that while “plaintiff may not have had actual knowledge how data on his computer related to his job search would be used by defendants, he should have known that his online job search activities on his home computer were at least potentially relevant to the litigation.” Further, since plaintiff had retained experienced class action counsel, the connection between the phone solicitations and the plaintiff’s contemporaneous online job search should have been obvious.
The court held that plaintiff should have reasonably known that his computer data would be relevant to the lawsuit as early as August 2012, and the plaintiff had actual knowledge as a result of defendants’ instruction not to delete computer data at his October 2013 deposition.
The court then addressed whether the data was relevant. Plaintiff contended that even if the duty to preserve arose as early as August 2012, a different program on his computer would have already erased any relevant data prior to that date. Further, plaintiff argued that data concerning his online jobs search activities after the solicitous phone calls would not be relevant to whether he consented to the phone calls.
The court found the plaintiff’s arguments unpersuasive. The court found that there was no evidence that any of the plaintiff’s programs were deleting data during 2012. Further, the plaintiff did not install PC Optimizer until November 2012, so any data prior to the phone calls would have existed prior to when the plaintiff’s preservation duties arose. Finally, defendants’ expert found some website history data on the plaintiff’s computer dating to July 2012, which showed the plaintiff had visited defendants’ website which demonstrated that plaintiff had destroyed relevant data after the duty to preserve arose.
The court then analyzed the plaintiff’s degree of culpability and determined plaintiff was grossly negligent. Plaintiff’s culpability evolved from negligence to willfulness throughout the litigation. In regards to the installation of the PC Optimizer program, the plaintiff stated that he did not know the purpose of the program, but the court noted that plaintiff never unequivocally stated that he did not know that the program would delete files from his computer. Further, the court noted that at his deposition, plaintiff indicated that he knew enough about computers to know that PC Optimizer would delete files off his computer. These facts supported the court’s finding that the plaintiff was at least negligent in installing PC Optimizer in November 2012.
This negligence turned into gross negligence in October 2013 when plaintiff failed to take any steps to preserve his computer data after being instructed by the defendants’ counsel to preserve his computer data. Neither plaintiff nor his counsel took steps to image plaintiff’s hard drive or stop PC Optimizer from running. Finally, the court found that plaintiff’s failure to stop the PC Optimizer from running automatically constituted willful and deliberate spoliation drive after being ordered by the court in January 2014 to preserve his hard drive.
The court then analyzed what form of a sanction would be appropriate due to the plaintiff’s preservation failures and held that an adverse inference instruction was appropriate due to the degree of culpability by plaintiff and the prejudice suffered by defendants. Specifically, the court held that the harshest adverse inference instruction was warranted; that is, “the jury may be instructed that certain facts are deemed admitted and must be accepted as true.”
The court stated that “because there is no way to ensure that the full extent of the destroyed computer data can be recovered or obtained from another source, only a strongly worded jury inference will adequately address the harm to defendants.”
The court ordered the following instruction to be given to the jury:
Plaintiff has failed to prevent the destruction of relevant evidence for defendants’ use in this litigation. This is known as the ‘spoliation of evidence.’
I instruct you, as a matter of law, that plaintiff failed to preserve evidence after his duty to preserve arose. This failure resulted from his failure to perform his discovery obligations.
You shall presume that defendants have met their burden of proving the following two elements by a preponderance of the evidence: first, that relevant evidence was destroyed by plaintiff after the duty to preserve arose. Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would naturally have been introduced into evidence; and second, the lost evidence was favorable to defendants.
Whether this finding is important to you in reaching a verdict in this case if for you to decide.
The court also awarded reasonable attorney fees and costs to the defendants.
v.
JOB.COM, et al., Defendants
Counsel
Joshua Branden Swigart, Hyde and Swigart, San Diego, CA, Nicholas J. Bontrager, Martin & Bontrager, APC, Los Angeles, CA, Seyed Abbas Kazerounian, Jason Alan Ibey, Matthew M. Loker, Kazerounian Law Group, Costa Mesa, CA, Todd M. Friedman, Law Offices of Todd M. Friedman, P.C., Beverly Hills, CA, for Plaintiffs.Dane Joseph Bitterlin, Hugh Anthony McCabe, Robert Joseph Olson, Neil, Dymott, Frank, McFall & Trexler A.P.L.C., San Diego, CA, for Defendant.