Wednesday, May 5, 2010

Spoliation Sanctions Against Plaintiff Employee

In Stein v. Clinical Data, Inc., 2009 Mass. Super. LEXIS 296 (Mass. Super. Oct. 9, 2009), available here, Judge Fabricant sanctioned the plaintiff who had run a “scrubbing” software on his computer at least three times both before and after a court order prohibiting from deleting emails, and also using registry cleaning software designed to remove any traces of the use of scrubbing software. All of this was revealed when a court-ordered forensic examination of the plaintiff’s computer was conducted. The court found plaintiff’s intentional misconduct caused prejudice and substantial harm to the defendant, and granted the defendant’s motion to dismiss plaintiff’s claims, ordering plaintiff to pay defendant’s costs reasonably incurred in its efforts to obtain discovery, including attorneys’ and experts’ fees. In addition, defendant had counterclaimed against plaintiff, alleging that he had consulted with competitors of defendant in violation of his employment agreement and had used defendant’s confidential information in those consultations. Additionally, defendant alleged that plaintiff solicited defendant’s chief scientist to leave his employment with defendant, in violation of plaintiff’s employment agreement. As an additional sanction for plaintiff’s spoliation, the court ordered that defendant would be permitted to introduce evidence of plaintiff’s spoliation misconduct before the jury on the counterclaims, and that the court would instruct the jury that it may infer from plaintiff’s misconduct that additional relevant materials existed but have not been recovered or produced, and that such materials would have provided evidence of facts inconsistent with plaintiff’s position with respect to defendant’s counterclaims.

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