Where a plaintiff “willfully [ran] a computer program that she knew, given her computer expertise, would destroy at least some data,” the court refused to dismiss the case but decided that other, nonterminal sanctions would “cure the prejudice.”
Karen Ericksen, the plaintiff, was previously an information technology instructor for defendant Kaplan Higher Education. After she was terminated, Ericksen sued Kaplan for failure to pay wages, violations of federal and state wage laws, and wrongful discharge. In support of her claims, Ericksen offered two key pieces of evidence: a letter that she claimed showed she received a raise that Kaplan failed to pay and an e-mail “allegedly indicating that she was terminated as retaliation.” The e-mail read, in part, “Karen has to go. You can finish doing what needs to be done to discredit her…I want her out…and so she cannot be rehired.”
Kaplan suspected that both documents were falsified: Ericksen produced conflicting versions of the letter, the supposed author of the letter denied writing it, and Kaplan could not find the e-mail on its servers. Because Ericksen never produced either document in its native format, no metadata existed about when and where the files were created. After conferring, the parties agreed that a third-party expert would inspect Ericksen’s computers on April 1, 2015.
The inspection revealed that between March 29 and March 31, 2015, Ericksen ran five data cleanup, or “optimizer,” programs on her hard drive, “deleting over 400,000 files.” Despite the data destruction, the inspection found PDF versions of the supposed letter. Those letters had been created from Microsoft Word and Excel by the username “Gigi.” The purported e-mail was not found.
In her deposition, Ericksen admitted that she was “generally aware of her duty to preserve evidence,” that the hard drive was her primary data repository, and that “Gigi” was her main profile. Ericksen further stated that she ran the programs to “enhance her computer’s performance,” despite knowing that they “would delete certain files.”
Kaplan asked the court to dismiss the case for spoliation of evidence. The magistrate judge, after review, issued a report and recommendations to the district court. In this memorandum order, the court adopted those recommendations over both parties’ objections. Noting that the recently amended Federal Rule of Civil Procedure 37(e)(1) requires the court to impose “measures no greater than necessary to cure the prejudice,” the court denied Kaplan’s motion to dismiss, finding that dismissal was “not a necessary antidote.”
Instead, the court precluded Ericksen from using the letter and e-mail as evidence, and permitted Kaplan to “present evidence related to the loss of evidence.” The court opined that these steps would “cure the prejudice created by the loss of evidence by eliminating any risk that the jury deems [the letter or e-mail] authentic.” The court also ordered Ericksen to pay Kaplan’s attorneys’ fees.
Ericksen v. Kaplan Higher Educ., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016).
As the Advisory Committee’s comments to Rule 37 suggest, “the remedy should fit the wrong.” Here, the court applied a strict reading of Rule 37, finding it a “high standard” to meet. It seems this may have been a case where the plaintiff’s behavior satisfied that standard. The plaintiff’s use of five data-destruction programs while litigation was pending, especially as a computer professional, was damning. Moreover, the timing, thoroughness, and willfulness of her “optimization” were particularly suspect. Yet, despite that seemingly conclusive evidence, the court focused not on her bad faith but on the prejudice, which was not severe enough to warrant dismissal.