Court Orders Adverse Inference for Spoliation of Data on Handheld Devices

Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009)

Plaintiff Southeastern Mechanical Services, Inc. (“SMS”) moved for spoliation sanctions alleging that defendants, including individual defendants Smith, Sherouse and Brody, spoliated data by deleting it from their BlackBerries and laptops. Defendants denied the allegations and argued that no evidence was destroyed because all of the data on the individual defendants’ laptops and BlackBerries was stored on servers. Further, defendants argued that hard copies of the relevant emails were produced to SMS and it was therefore irrelevant whether any information was deleted. The allegations regarding the laptops were eventually resolved by corporate defendant Thermal Engineering Construction Services, Inc.’s, (“TEI”), explanation that the laptops were configured so that the individual defendants’ emails would reside on the server. As to the BlackBerries, however, the court found the individual defendants had deleted the data in bad faith and ordered an adverse inference to be provided to the jury at trial.

The timing of certain activities is relevant to the analysis. In furtherance of their employment with corporate defendant TEI, defendants Smith and Sherouse purchased BlackBerries no later than May 29, 2008. Defendant Brody used his personal BlackBerry during the course of his employment. The BlackBerries were synchronized to TEI’s servers on June 3 and 4, 2008. On June 10th, four days after receiving SMS’s demand letter alleging defendants’ unauthorized access to SMS’s confidential information and trade secrets, defendants’ emails were copied and preserved. The individual defendants returned their “computer devices” and BlackBerries on June 16 and 17, 2008, four days after being asked to do so (pursuant to a Temporary Restraining Order issued by the court), and defendants email accounts were subsequently locked and frozen, preventing defendants’ access.

Thereafter, the BlackBerries were provided to plaintiff’s and defendants’ forensic experts. Neither found any data on the BlackBerries, despite evidence that the devices had been used for more than making phone calls. Specifically, plaintiff’s expert determined the devices “contained no data, including e-mails, text messages, calendar items, telephone records, contacts, attachments, or applications.” TEI’s expert also determined that each of the devices contained a Subscriber Identity Module (“SIM”), a card which contains information about a phones service and can also contain information about text messages and address contacts. Limited, if any, information was discovered on each card.

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Source: ediscoverylaw.com