Nothing Says “Bad Faith” Like Throwing a Laptop off a Building

Is entering a default judgment against a party for destroying a laptop excessive and unduly harsh?  Not in Utah.  Daynight, LLC v. Mobilight, Inc., 2011 UT App 28, P2 (Utah Ct. App. 2011).

Daynight involved a destroyed laptop and what was the appropriate sanction for the destruction of evidence. 

Certainly not helping the Appellants’ cause was a video with employees discussing the destruction of “potential[ly] harmful evidence that might link [them] to any sort of lawsuit.” Daynight, at *3-4. 

Add actions including throwing a laptop off a building and running it over with a car, plus statements such as “[If] this gets us into trouble, I hope we’re prison buddies,” and you can kiss any good-faith defenses goodbye.  Daynight, at *4.

On a fundamental level, most document retention and destruction policies do not involve skeet shooting or monster trucks.

The Plaintiffs & Third-Party Defendant Appellants were sanctioned with a default judgment for the destruction of evidence, pursuant to Utah Code of Civil Procedure Rule 37(g).  The Appellants argued that the sanction was “excessive” and “unduly harsh.”  Daynight, at *1. The Court of Appeals did not agree. 

Rule 37(g), states in relevant part:

Nothing in this rule limits the inherent power of the court to take any action authorized by Subdivision (b)(2) if a party destroys, conceals, alters, tampers with or fails to preserve a document, tangible item, electronic data or other evidence in violation of a duty. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Daynight, at *3.

Utah Rule of Civil Procedure Rule 37(g) lacked any case law interpreting the statute, so the Appellants argued the Code required a showing of “wilfulness, bad faith, fault or persistent dilatory tactics.” Daynight, at *3.

The Court of Appeals did not agree.  As the Court stated:

In our view, spoliation under rule 37(g), meaning the destruction and permanent deprivation of evidence, is on a qualitatively different level than a simple discovery abuse under rule 37(b)(2), which typically pertains only to a delay in the production of evidence. Compare Utah R. Civ. P. 37(b)(2) with id. 37(g). Contrary to KK Machinery’s assertions, rule 37(g) of the Utah Rules of Civil Procedure does not require a finding of “wilfulness, bad faith, fault or persistent dilatory tactics” or the violation of court orders before a court may sanction a party. Rule 37(g) states: Nothing in this rule limits the inherent power of the court to take any action authorized by Subdivision (b)(2) if a party destroys, conceals, alters, tampers with or fails to preserve a document, tangible item, electronic data or other evidence in violation of a duty. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Daynight, at *2-3.

While the Court of Appeals held it was not necessary to find “wilfulness, bad faith, fault or persistent dilatory tactics,” the Court stated the skydiving laptop antics “unquestionably demonstrate bad faith and a general disregard for the judicial process.” Daynight, at *4.

Bow Tie Thoughts

Throwing a laptop off a building and running over it is probably the closest we will have to a strict liability offense for spoliation. While I doubt lawyers will issue litigation hold letters saying, “Don’t Throw Computers Off Buildings,” you never know what some people will do.

3 thoughts on “Nothing Says “Bad Faith” Like Throwing a Laptop off a Building

  1. Pingback: Unfiltered Orange | Weekly eDiscovery News Update - February 9, 2011 | Orange Legal Technologies

  2. Pingback: Weekly Top Story Digest - February 9, 2011 | ComplexDiscovery

  3. Pingback: ACEDS ESI news digest | ACEDS

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