Court Reverses Order Denying Sanctions and Remands Case for Reconsideration Where Plaintiff Hired Expert to "Fix" Computer but Failed to Inform Expert of Ongoing Duty to Preserve and Evidence was Destroyed
Electronic Discovery Law:
Barnett v. Simmons, 2008 WL 4853360 (Okla. Nov. 14, 2008)
In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him. Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil. Accordingly, Rock Oil sought production of plaintiff’s hard drive. Plaintiff objected, but the parties attempted to reach agreement as to how to accomplish production. No agreement was reached. Rock Oil filed a motion to compel and the court granted the motion. Although the parties were then able to agree on a neutral examiner, the plaintiff dismissed his claims prior to the examination, but expressed his intent to re-file within three months.
Several weeks later, Rock Oil filed a motion for the appointment of a neutral computer examiner and for sanctions and contempt of court based on plaintiff’s apparent spoliation of electronic computer files. In support of this motion, Rock Oil indicated that it learned through a third party that the plaintiff’s computer had been worked on by others and may have been compromised. Plaintiff responded that the files were not produced prior to dismissal and admitted that he had work done on his computer. He further argued that Rock Oil made no showing of willful destruction and that he did nothing inappropriate.
Despite Barnett’s voluntary dismissal, the trial court retained jurisdiction to impose sanctions for violations of court orders entered prior to the dismissal. The court granted Rock Oil’s motion, and the drive was examined by a neutral third party. During a hearing on the matter, Rock Oil argued that plaintiff was aware of Rock Oil’s attempts to inspect his computer, as well as the order allowing such inspection and further contended that he acted deliberately to destroy evidence. Plaintiff countered that he…