T&E Investment Group LLC v. Faulkner, et al., No. 11-CV-0724-P (N.D.Tx. February 12, 2014)
In this Texas case, defendant Faulkner was charged with spoliation of evidence (metadata manipulation) after using a bulk file changer to disguise use of an unproduced computer.
Responding to plaintiffs T&E’s motion to compel, the court ordered that a “third party independent computer forensic expert jointly selected by the parties shall be permitted by defendants to have access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives”
The agreed-upon expert, Fogarty, performed the initial investigation. The court summarized:
“Faulkner created a new profile on [computer] PCL-03, copied data to it, and used a bulk file changer to alter the data in an apparent “attempt to make it look like that was his computer that he used all the time.” Fogarty testified that he believed that someone used the bulk file changer to hide the existence of a computer that had not been produced in this case. He connected the missing computer to the use of the bulk file changer as follows: “And we clearly have a computer that was used throughout the entire year of 2011 up to and including the date of the Court order, and that computer has never been produced, and instead we got a computer that had falsified information on it pretending to be Mr.Faulkner’s computer.”
Of particular interest was an Alienware brand computer, which Fogarty testifed “was in the Faulkner’s home and we know it connected and made a secure connection to the Faulkner home computer or [the wife’s] computer in this case.” Fogarty also testified that e-mails were sent from the Alienware computer and that use of the bulk file changer showed intent to hide this computer and prevent its eventual production.
Defendant countered that he only used the bulk file changer to convert the files to read-only status as a protective measure against accidental deletion and that he had produced all computers in his custody.
The magistrate judge held that this testimony was false and plaintiffs sought sanctions. Specifically the judge found that:
“Faulkner’s use of a bulk file changer on PCL-03 and transferring large amounts of data from an external hard drive to that computer satisfied the elements of sanctionable spoliation under applicable law. More specifically … Defendant Faulkner manipulated data on PCL-03 to avoid producing the Alienware computer.”
The judge also held that defendant acted in bad faith and that the jury be “given a spoliation instruction that would entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party.”
The district court affirmed the magistrate’s order and imposition of a $27,500 monetary sanction.
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