Agent's Spoliation Results in Serious Sanctions

Rosenthal Collins Group, LLC v. Trading Techs. Int’l, No. 05 C 4088, 2011 WL 722467 (N.D. Ill. Feb. 23, 2011)

In this case, the court ordered default judgment, ordered plaintiff to pay $1,000,000 in monetary sanctions, and ordered counsel to pay “the costs and attorneys fees incurred in litigating this motion” where plaintiff’s agent modified metadata related to relevant source code and wiped several relevant disks and devices prior to their production and where the court found counsel participated in “presenting misleading, false information, materially altered evidence and willful non-compliance with the Court’s orders.”

After plaintiff filed for summary judgment its retained consultant admitted in deposition that he had modified relevant source code prior to its production. Upon defendant’s motion for sanctions, the court declined to order default judgment but imposed monetary sanctions, struck the consultant’s declaration in support of summary judgment, and struck plaintiff’s motion for summary judgment.

Thereafter further spoliation was revealed. Specifically, the consultant admitted to “turning back the clock” to change the “last modified” date on the previously modified source code to make it appear that the modifications had occurred much earlier and to wiping 6 of 7 disks produced for inspection (while the seventh disk was also wiped, it remained unclear who was responsible). It was also discovered that “various disks, USB drives and computers that RCG finally produced had been ‘wiped’” prior to production and that the hard drive produced in the “test machine” had been manufactured in 2008 (much later than would be expected in light of relevant time frames). Accordingly, defendant moved for additional sanctions.

In its defense, “RCG [did] not dispute any of the new allegations of misconduct” but instead sought to distance itself from “its own agent, employed for the purposes of pursuing this litigation” and disavowed any “actual knowledge” of wrongdoing. RCG’s counsel similarly disavowed “any personal wrongdoing and any actual knowledge of any wrongdoing, while unequivocally distancing themselves and RCG from [the consultant].”

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Source: ediscoverylaw.com