Adverse inference sanctions granted for spoliation of data on BlackBerries despite their synchronization with company email server

September 28, 2009 | Leave a Comment

Southeastern Mechanical Services, Inc. v. Brody, 2009 U.S. Dist. LEXIS 85430 (M.D. Fla. Aug. 31, 2009)

Defendant producers first bought BlackBerries around May 28, 2008 (except for defendant Brody, who elected to use his personal BlackBerry for company purposes). On June 3 and 4, 2008, the BlackBerries were synchronized to the company email server so that “all emails sent or received from the blackberry devices and the individual’s [company] email account would also reside on the company’s server and be subject to the company’s normal backup and archiving process.” Id. at *6. One defendant received his laptop around May 29, while two others received laptops around June 3, 2008. On June 4, the laptops were configured so that emails would reside on the company server instead of the laptop hard drives.

Producer received plaintiff requestors’ demand letter on June 6, 2008, alleging use of plaintiffs’ confidential information and trade secrets. Upon request of producers’ legal department, the email databases of the three individual defendants were copied and preserved on June 10, 2008. On June 13, the court entered a TRO directing the return of all requestor information and property, and ordered producers to preserve all ESI until further notice. The TRO was served on defendants on June 14 and 16, 2008.

Individual defendants were placed on administrative leave on June 17, and directed to return their BlackBerries and laptops to producers’ CIO. They complied immediately. The individuals’ accounts were frozen and all email data was backed up that same day. The CIO testified that” all e-mails sent from or received by the BlackBerries, ‘once synchronized’ with TEI’s Lotus Notes e-mail application, were stored on the company server….Furthermore, e-mails sent from or received by Individual Defendants from their laptops were stored and preserved on the company server….” Id. at *9. Once the devices were received, they were kept in a locked cabinet until they were turned over producers’ forensic examiner. Subsequently, the devices were given to requestors’ forensic examiner, Kessler.

Kessler found no data on the BlackBerries, “including e-mails, text messages, calendar items, telephone records, contacts, attachments, or applications…. Kessler opined that the information stored on the BlackBerries was not manually deleted… Kessler testified that the BlackBerries ‘were not consistent with the never-used state, and they were not consistent with the only used for phone calls state’. In other words, the BlackBerries were different from a new BlackBerry, or one only used for phone calls. Id. at *10.

Kessler opined that there were two possible explanations for the state of the BlackBerries: “(1) the user performed a data “wipe” or “hard reset” or (2) the user entered an incorrect password ten consecutive times.” Id. at *11. Thus, it would be difficult to accidentally wipe a BlackBerry of data. Id.

Producer’s expert, Walker, opined that he would not expect to see emails on the laptops because they were stored on the central server. Walker also did not find email on the Blackberries, but did find address contacts and text messages stored on the phone’s SIM (subscriber identity module) card. Id. at *11-*12. Walker agreed with Kessler’s reasoning regarding the lack of data, but also observed that the data could have been wiped by a third-party administrator from the central server, or by Kessler himself (subsequently denied by Kessler).

The court observed that “it is clear that evidence existed at one time and that there was a duty to produce this evidence.” Id. at *15. In particular, the individual defendants had used their BlackBerries between the time they acquired them (May 18-19), and the time they were synchronized with the central server (June 3-4). In addition, “telephone records, text messages, and calendar items were deleted from Individual Defendants’ BlackBerries.” Id.

The court found bad faith in the destruction of the data from the BlackBerries:

The Individual Defendants had both the motive and the opportunity to wipe the BlackBerries of data. Despite the denials by Individual Defendants that they deleted any information, e-mails, text messages, call logs, or memory from their BlackBerries, their assertions are not credible. The forensic computer experts agree that three of the four possible explanations for the “wiped” state of the BlackBerries can only be attributed to deliberate and intentional actions. TEI’s suggestion that SMS’s expert could have inadvertently deleted the data is not plausible. Kessler testified that he used appropriate procedures and software to prevent any contamination of the BlackBerries.

Id. at *17. In regard to the laptops, the court accepted the explanation that they had been configured so that email would reside on the central server. Id. at *17, n10.

The court concluded that plaintiffs had been prejudiced by the absence of the data:

Given the fact that Individual Defendants frequently used their BlackBerries, it is improbable that there was no data on the BlackBerries reflecting communications between Individual Defendants and TEI employees, Babcock employees, current customers, or potential customers. Likewise, it is suspicious that there are no e-mails, text messages, calendar entries, or records of telephone calls from Smith to Brody or Sherouse on the BlackBerries, despite the fact that Brody and Sherouse reported to Smith.

The court added that in the TRO hearing, defendant Sherouse had used a software program to delete all of the data on his laptop before he returned it. Sherouse’s explanation that he wanted to delete personal information was found to be not credible by the court. Id. at *20.

Hard copies of emails produced by the individual defendants revealed that they had used their personal email accounts to communicate with the corporate defendants, which would not have been stored on the company server. Furthermore, “text messages, calendar items, and call logs on the BlackBerries were not saved on the company’s server.” Id. at *21. Defendant Brody, who had had his own personal BlackBerry for over a year, had no emails, text messages, calendar entries or call logs on his device. The court thus concluded that the missing data would have been unfavorable to the individual defendants. Id. at *21-*22. The court found that plaintiff producer “is entitled to an appropriate adverse inference jury instruction regarding Individual Defendants’ failure to preserve data on their BlackBerries that would have been advantageous to SMS and disadvantageous to Individual Defendants.” Id. at *23.

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