Plaintiff’s Reformatting of Hard Drives Sought in Discovery Warrants Adverse Inference Instruction, Not Dismissal
Electronic Discovery Law:
Johnson v. Wells Fargo Home Mortgage, Inc., 2008 WL 2142219 (D. Nev. May 16, 2008)
In this case, plaintiff alleged that defendant erroneously reported two of his real property mortgage loans delinquent to credit reporting agencies. Plaintiff claimed that defendant foreclosed on one loan and continued to erroneously report both loans delinquent after plaintiff spent nine months making multiple phone calls and sending correspondence, including cancelled checks and loan documents, verifying the loans were current.
Defendant contended that plaintiff’s Fair Credit Reporting Act claim was supported with various letters he drafted on his two laptops and were “the very foundation of his claim.” Defendant further contended that computer evidence revealed plaintiff may have manufactured the documents to support his claim and then flagrantly reformatted the hard drives on the laptops shortly after defendant informed him that they had been formally requested and were relevant to the case.
Plaintiff had previously objected to defendant’s request for production, but indicated he would produce documents located on the laptops if defendant would specify which documents it was requesting. After defendant’s many attempts to come to a resolution over this discovery request, defendant ultimately filed a motion to compel the hard drives, which the court granted. Prior to the motion to compel, but after the request for production, however, plaintiff reformatted and/or reinstalled both hard drives.
Defendant eventually received the hard drives and a forensic analysis revealed that both laptops had been reformatted and/or reinstalled. Further, although he claimed to have made back-up files before reformatting the drives, plaintiff did not produce any saved back-up files of the information that was on the hard drives prior to the reformatting/reinstallation. Thus, defendant claimed it was severely prejudiced based on plaintiff’s willful conduct, and that dismissal of plaintiff’s FCRA claim was warranted.
The court decided the…