Defendant Accused of Destroying Computer Evidence
Computer Forensics Plays a Significant Role
July 23, 2008
Doll Designer Installs “Evidence Eliminator” Software
Once again, a defendant in a high-stakes trade secrets case is nabbed, in part, for his attempt to
destroy Electronically Stored Information (ESI) during discovery.
It’s the case of Barbie against Bratz. By now you have read the news accounts of Mattel vs. MGA. Last Thursday, Mattel, Inc. won a long and fierce battle with MGA over MGA’s “Bratz” Doll, which Mattel claimed was conceived by Mattel doll designer Carter Bryant, while on Mattel’s payroll. Bryant left Mattel some time ago, and landed a job at MGA, helping them launch the Bratz Doll, which quickly became a Billion dollar seller, eroding Mattel’s Barbie sales. Mattel sued, and last week a jury agreed that the idea for Bratz belonged to Mattel.
Among other evidence, the court was struck by the fact that Mr. Bryant had installed “Evidence Eliminator” hard drive wiping software on his laptop computer prior to turning it over during discovery. Bryant indicated he did so in order to remove “embarrassing” files that were not related to the case. The court disagreed. The end result: a ruling for Mattel. Awards will be determined this week, and have the potential for hundreds of millions of dollars.
Attempting to Destroy ESI Often Backfires
Individuals often fail at their attempt to cover their tracks with drive wiping software applications for a number of reasons. Most importantly, the mere act of installing such software after receiving a preservation notice almost automatically sends up a blazing red flag….especially when using an application so dubiously named “Evidence Eliminator”. Yikes! Installation of the software usually leaves a digital fingerprint showing the time and date of the installation, often with markers that can identify the user. This electronic trail can make matters worse for the would be data destroyer.
Tips for Prevailing Even When Your Opponent Tries to “Wipe” His Hard Drive
All is not necessarily lost if your opponent tries to remove important files. These strategies can
- Use the destruction as a litigation weapon. Indications of data destruction can be powerful tools in persuading a litigant to the negotiation table, or in influencing a Judge / Jury. Sanctions, adverse inferences and case-destroying ramifications can result. FRCP Rule 37 can be very effective in cases involving ESI spoliation.
- Perform an analysis of the computer even if you suspect drive wiping software was installed. Not all evidence destruction software is created equal. Some applications can leave behind remnants of electronic documents that can still be recovered.
- Computer user activity prior to the installation of drive wiping software can be revealing. Some wiping applications destroy document files but system – level user activity can sometimes remain intact. Discovering, for example, that a defendant downloaded dozens of confidential files to a USB storage device and then installed evidence removal software could be particularly important in proving your case.
- Apply the Computer Fraud and Abuse Act (CFAA) if it serves your objectives. Evidence of ESI destruction can easily meet CFAA thresholds.
- Remember the multiple source rule. ESI (particularly Email) is usually stored in multiple locations, (file servers, web-hosted email providers, etc.), and you may be able to build your case on ESI that is discoverable in other places even if a computer user has successfully wiped his hard drive. BlackBerries and cell phones, for example, are becoming increasingly important sources for recovering ESI, especially those oftenrevealing text messages. The good news? Ill-intending spoliators usually forget to wipe those.
- Educate the Judge with important court rulings related to ESI Destruction. Let’s be honest, not all of our honorable members of the bench are completely up to speed on rulings related to computer evidence spoliation. Chances are the judge will appreciate your references to some important cases in your filings. See:
- Resource Center for Independent Living v. Ability Resources, Inc.
- International Airport Centers, LLC v. Jacob Citrin
- China Ocean Shipping Group Co. vs Simone Metals