Berry Bad Behavior

Southeastern Mechanical Services, Inc. v. Brody

Case: Southeastern Mechanical Services, Inc. v. Brody, No. 8:08-CV-1151-T-30EAJ, 2009 WL 2883057 (M.D. Fla.  Aug. 31, 2009).

Topic:  Spoliation of PDA Stored Data


Employer alleged its former employees misappropriated confidential and trade secret business information and brought an action against both the individual employees and their new corporate employers.  The original employer sought discovery of information contained on the individual defendants' laptops and BlackBerry model personal digital assistants.  When the devices were produced, forensic examination revealed that the employees had deliberately "wiped" the BlackBerrys of all data, permanently deleting text messages, calendar items, call logs and e-mails sent via personal email accounts. (Business emails had been stored on the new employer's server).  The data destruction violated an order entered by the court requiring the preservation of all computer files and data and prohibiting the destruction of any relevant information.  The destroyed data came from the key time period when the individual employees were in transition between employers. While the court found the destruction had been done in bad faith and prejudiced the original employer, it denied the requested sanction of a default judgment. Instead, as a sanction, it ordered that the jury be instructed to make an adverse inference against the employees regarding their failure to preserve the data deleted from their BlackBerrys.

BuLITS Points

  • If relying on a server-based backup system for purposes of preservation, you must know the nature and extent of the saved material - especially if external tools such as BlackBerrys and laptops are setup to have their information "reside" on the server.
  • When developing each individual data custodian's discovery plans, don't forget to consider personal email accounts if those accounts have been used for a business or other purpose relevant to the suit.
  • Depending on the circumstances of a case, failure to either control or account for employee misconduct can result in significant sanctions for the employee or employer, including the possibility of an adverse inference jury instruction.

And Remember

BlackBerrys and other PDAs are increasingly becoming a standard part of discovery requests by opposing parties.  Remember to include these devices in your data practices policy or risk watching the data contained within them turn into "low hanging fruit" on the e-discovery tree.

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