Arguments to defend

[dodo3]

I am defending a lawsuit on my own. I have two laptops in my house. One of them is of my college going adult daughter and she lives in my house and the other one is of my employer and I move this one between my office and house. Plaintiff knew these from the beginning.

Plaintiff wrote a letter to me to preserve the information in those devices. Later on, Court ordered me to submit those two computers for forensic imaging and I did (court did not ask me to preserve any information). Plaintiff simply delayed the forensic collection matter and it took more than two months from the time Plaintiff wrote the preservation request until the forensic images were actually collected by Plaintiff.

Soon after the preservation request, I informed my daughter to either stop using completely or use it for routine important purposes only if she cannot stop using it completely. My daughter is ready to testify this. My daughter was not directly informed by Plaintiff to preserve information in her laptop but my employer was directly informed by the Plaintiff to preserve information in my office laptop. But my employer did not care that request and did not even discuss with me. I was forced to use the same office laptop but I tried my best to preserve the information in it: I did almost what my daughter did to preserve the information.

Quickly after receiving the preservation request, we both tried to get alternate laptops from friends in an effort to completely stop using our existing laptops but were not successful and we have evidences from our friends about our failed efforts. We both stopped doing several important routine works on those laptops until the forensics were collected and have evidences. We both did some minor and partial cleanings from time to time, without which we could not have used our laptops during that more than two months time. Plaintiff knew these facts but claims that spoliation of evidence happened.

I read Rule 1.380 but confused with its amendment (e) and its applicability to my situation because any use of computer overwrites some older data even if the use of the computer is in routine good-faith operation. What arguments do I have to defend?

Is the Plaintiff at fault for failing to inform my daughter directly to preserve the information in her laptop despite knowing that the laptop is her property? Is my employer at fault? Does my employer have any role in this claim?

Thanks for your help.

I live in Crest View, Florida.

 

[Zigner]

I think you would be wise to consult with a local attorney.

As written, your question is to vague for anyone here to be able to offer anything other than very general advice.

 

[quincy]

I am defending a lawsuit on my own. I have two laptops in my house. One of them is of my college going adult daughter and she lives in my house and the other one is of my employer and I move this one between my office and house. Plaintiff knew these from the beginning.

Plaintiff wrote a letter to me to preserve the information in those devices. Later on, Court ordered me to submit those two computers for forensic imaging and I did (court did not ask me to preserve any information). Plaintiff simply delayed the forensic collection matter and it took more than two months from the time Plaintiff wrote the preservation request until the forensic images were actually collected by Plaintiff.

Soon after the preservation request, I informed my daughter to either stop using completely or use it for routine important purposes only if she cannot stop using it completely. My daughter is ready to testify this. My daughter was not directly informed by Plaintiff to preserve information in her laptop but my employer was directly informed by the Plaintiff to preserve information in my office laptop. But my employer did not care that request and did not even discuss with me. I was forced to use the same office laptop but I tried my best to preserve the information in it: I did almost what my daughter did to preserve the information.

Quickly after receiving the preservation request, we both tried to get alternate laptops from friends in an effort to completely stop using our existing laptops but were not successful and we have evidences from our friends about our failed efforts. We both stopped doing several important routine works on those laptops until the forensics were collected and have evidences. We both did some minor and partial cleanings from time to time, without which we could not have used our laptops during that more than two months time. Plaintiff knew these facts but claims that spoliation of evidence happened.

I read Rule 1.380 but confused with its amendment (e) and its applicability to my situation because any use of computer overwrites some older data even if the use of the computer is in routine good-faith operation. What arguments do I have to defend?

Is the Plaintiff at fault for failing to inform my daughter directly to preserve the information in her laptop despite knowing that the laptop is her property? Is my employer at fault? Does my employer have any role in this claim?

Thanks for your help.

I live in Crest View, Florida.

Any older data overwritten by regular computer use will not have been overwritten completely - fragments of the old files will remain. If you and your daughter did not purposely attempt to delete material from your computer, that, too, can be determined by a forensic examination of the computers.

That said, "minor and partial cleanings" are generally not required and could potentially be seen as an attempt to delete incriminating evidence if these cleanings occurred after you received the preservation request.

I am surprised that your employer did not object to the forensic examination.

You need an attorney - and you really should have had one at the time the discovery request was made.

 

[dodo3]

Thanks so much for the valuable feedback.

I provided more details and some arguments to help you understand my case better. Please answer my questions. This forum is really helping people like me.

My office laptop: My employer issued me the laptop. I had to do what my employer asked me to do on it. My job mandates computer cleaning routinely and it has been for years. Despite the hardship of not receiving an alternate laptop or any solution from my employer, however, after receiving the preservation request, I VERY DRASTICALLY reduced the frequency and the amount of cleaning to run my job somehow (else I would have lost my job). Therefore, I did less than routine work on the laptop and with good faith to perform my job.


My daughter’s laptop: My daughter had been doing cleaning of her computer for a long time as the computer is outdated and frequently giving problems. However, without performing those minor cleanings, the computer becomes stuck and unusable. She had no other computer other than this. She also greatly reduced the quantity and frequency of the cleanings once I informed her. Therefore, she did less than routine work on the laptop and with good faith to pass her courses.
I had no legal right to impose any sanctions on her usage of the laptop. Despite this limitation, I instructed her and she followed my instructions to the best of her ability. She made her laptop available for forensic imaging despite not receiving any instructions from anyone (other than me). If I would have imposed further sanctions (for example, take away the laptop) probably she would have filed a police case. Judge is a human being and he knows my limitations and her limitation I hope.


My questions are as follows:
A). How does my daughter have an obligation to follow the request?
B). If I did not do the occasional cleanings, my job would have been in jeopardy due to me not doing my duties. Is it reasonable to assume that the judge will agree with what I have done?
C). If my daughter did not do the occasional cleanings, she would have failed in her courses due to lack of laptop. Is it reasonable to assume that the judge will agree with what she has done?
D). What can I expect the judge to do after knowing all these circumstances?

 

[Zigner]

The answers are the same:

I think you would be wise to consult with a local attorney.

As written, your question is to vague for anyone here to be able to offer anything other than very general advice.

Any older data overwritten by regular computer use will not have been overwritten completely - fragments of the old files will remain. If you and your daughter did not purposely attempt to delete material from your computer, that, too, can be determined by a forensic examination of the computers.

That said, "minor and partial cleanings" are generally not required and could potentially be seen as an attempt to delete incriminating evidence if these cleanings occurred after you received the preservation request.

I am surprised that your employer did not object to the forensic examination.

You need an attorney - and you really should have had one at the time the discovery request was made.

 

[quincy]

Thanks so much for the valuable feedback.

I provided more details and some arguments to help you understand my case better. Please answer my questions. This forum is really helping people like me.

My office laptop: My employer issued me the laptop. I had to do what my employer asked me to do on it. My job mandates computer cleaning routinely and it has been for years. Despite the hardship of not receiving an alternate laptop or any solution from my employer, however, after receiving the preservation request, I VERY DRASTICALLY reduced the frequency and the amount of cleaning to run my job somehow (else I would have lost my job). Therefore, I did less than routine work on the laptop and with good faith to perform my job.


My daughter’s laptop: My daughter had been doing cleaning of her computer for a long time as the computer is outdated and frequently giving problems. However, without performing those minor cleanings, the computer becomes stuck and unusable. She had no other computer other than this. She also greatly reduced the quantity and frequency of the cleanings once I informed her. Therefore, she did less than routine work on the laptop and with good faith to pass her courses.
I had no legal right to impose any sanctions on her usage of the laptop. Despite this limitation, I instructed her and she followed my instructions to the best of her ability. She made her laptop available for forensic imaging despite not receiving any instructions from anyone (other than me). If I would have imposed further sanctions (for example, take away the laptop) probably she would have filed a police case. Judge is a human being and he knows my limitations and her limitation I hope.


My questions are as follows:
A). How does my daughter have an obligation to follow the request?
B). If I did not do the occasional cleanings, my job would have been in jeopardy due to me not doing my duties. Is it reasonable to assume that the judge will agree with what I have done?
C). If my daughter did not do the occasional cleanings, she would have failed in her courses due to lack of laptop. Is it reasonable to assume that the judge will agree with what she has done?
D). What can I expect the judge to do after knowing all these circumstances?

I agree with Zigner. Our earlier responses - to seek the advice of an attorney in your area - still apply, even with the additional information you provided.

The problem you have with any computer cleaning after receipt of a preservation notice is that the absence of incriminating evidence can be presumed due to your erasing of incriminating evidence.

There is no way to predict what a judge/jury will do. Facts really matter.

But it seems clear you need an attorney. It is just too bad you did not have one sooner, before your computers became part of a discovery request.

Good luck.

 

[dodo3]

Once more, thanks so much for the valuable feedback.

 

[quincy]

Once more, thanks so much for the valuable feedback.

You're welcome, dodo3. Zigner and I both appreciate the thanks.

I hesitated at first to provide the following link to a Florida Bar Journal article written by Michael D. Starks, published in the July/August 2006 edition, because the language may not be the easiest for many people to read and understand. The article titled "Deconstructing Damages for Destruction of Evidence M@rtino Eradicates the First Party Tort of Spoliation of Evidence," does, however, cover spoliation of evidence in Florida rather thoroughly, and includes good case cites at the end of the article.

I will include it here for those who might be interested.

https://www.floridabar.org/DIVCOM/J...088525719a00565338!OpenDocument&Highlight=0,*

I wish you good luck in finding an attorney in your area who will assist you in the legal action.

 

[dodo3]

One more time, thanks so much for the valuable feedback, Quincy.

I just read this: before a Florida court issues any sanction for spoliation of evidence, the first question that needs to be answered is whether the evidence ever existed (in our laptops). The third question that needs to be answered is: whether the evidence was critical to the opposing party providing its affirmative claim or a defense.

The lawsuit is filed accusing me of posting some comments over the internet. However, plaintiff never produced any posting (not even a single posting) linking my home IP address to the alleged postings, despite my discovery requests to produce any postings that are published from my home IP address. Therefore, my home is ruled out as a potential launching spot for those postings. In addition, I have proofs that some of those comments were posted from outside of Florida and some of them were from outside of USA (my job records and my passport prove that I have never been to outside of Florida or USA during those dates/times).

Plaintiff has the MAC addresses of our computers. Therefore, if plaintiff is suspecting that our computers were used to publish those comments from outside of Florida/USA then he can issue subpoena to the owner(s) of the address(es)/facility(ies) (from where those comments were posted) to verify if our computers were ever connected to the internet providers of those facilities.

Now my questions are as follows:


A). Since the plaintiff failed to answer/fulfill the first question, how will I be responsible for spoliation of evidence (because no evidence ever existed in our computers)

(B). With given situation, based on the third question, wouldn’t the judge agree that this information is not critical (to the opposing party providing its affirmative claim or a defense) due to the fact that plaintiff has other path (using MAC addresses and subpoenas) to explore the truth.

 

[quincy]

One more time, thanks so much for the valuable feedback, Quincy.

I just read this: before a Florida court issues any sanction for spoliation of evidence, the first question that needs to be answered is whether the evidence ever existed (in our laptops). The third question that needs to be answered is: whether the evidence was critical to the opposing party providing its affirmative claim or a defense.

The lawsuit is filed accusing me of posting some comments over the internet. However, plaintiff never produced any posting (not even a single posting) linking my home IP address to the alleged postings, despite my discovery requests to produce any postings that are published from my home IP address. Therefore, my home is ruled out as a potential launching spot for those postings. In addition, I have proofs that some of those comments were posted from outside of Florida and some of them were from outside of USA (my job records and my passport prove that I have never been to outside of Florida or USA during those dates/times).

Plaintiff has the MAC addresses of our computers. Therefore, if plaintiff is suspecting that our computers were used to publish those comments from outside of Florida/USA then he can issue subpoena to the owner(s) of the address(es)/facility(ies) (from where those comments were posted) to verify if our computers were ever connected to the internet providers of those facilities.

Now my questions are as follows:


A). Since the plaintiff failed to answer/fulfill the first question, how will I be responsible for spoliation of evidence (because no evidence ever existed in our computers)

(B). With given situation, based on the third question, wouldn’t the judge agree that this information is not critical (to the opposing party providing its affirmative claim or a defense) due to the fact that plaintiff has other path (using MAC addresses and subpoenas) to explore the truth.

These are very good questions to ask your attorney, dodo3.

If you had an attorney when the discovery request was made for your computers, there is a good chance you would not have had to turn your computers over for a forensic examination - or, at the very least, the examination of the computers would have been limited in scope.

I am going to try to get a better link for the article I mentioned above and perhaps that can provide you with some answers - although I know the article could be difficult to read, and the article's focus is on spoliation of evidence as a separate tort action. And it could raise more questions for you.

Again, though, Zigner and I both recognize your need for personal legal assistance with your case, and we cannot provide that for you on this forum. Sorry.

 

[dodo3]

Once more, thanks so much for the valuable feedback.

 

[quincy]

... the first question that needs to be answered is whether the evidence ever existed (in our laptops). The third question that needs to be answered is: whether the evidence was critical to the opposing party providing its affirmative claim or a defense ...

Once more, you're welcome, dodo3.

As a note on what I have quoted above of your previous post, though: Those questions are definitely ones that need to be asked - but it COULD POTENTIALLY be inferred that there WAS incriminating evidence on your computer that was destroyed (intentionally or negligently or in bad faith) after there was a duty on your part to preserve the contents of your computer - and this inference could potentially be made because a forensic examination will show that computer files were deleted.

Certainly it makes it more difficult for a plaintiff to prove spoliation if there is no supporting evidence that anything ever was on one of your computers to begin with (a print-out, a tracking record linking material to your IP address, whatever). In order to get a preservation ORDER from the court, supporting evidence would generally be required by the court. Not so, however, with a discovery request - but this is where an attorney would have objected to the discovery request and the computer forensic examination.

It appears you could have defenses. Good. I think to fashion these defenses properly should the plaintiff seek sanctions against you for spoliation, you require the assistance of an attorney in your area.

Again, thank you for the thanks and good luck with your case.

 

[justalayman]

I surely hope, for your case, there is nothing found on either of the computers, especially anything that was "deleted". I hope there is no evidence of any attempts to actually erase any data using an erasing program, or even the existence of one ever being on your computer.

Your error was allowing the computers to be examined, or at the least, failing to object to the examination. Using your arguments that you did not control your requirement to occasionally "clean" your computer and your daughters need to regularly "clean" her computer become meaningless given your failure to argue the computers were not in fact yours to control. Once you acknowledge you have the authority to present them for examination, you lose the argument you do not have the power to control the possible deletion of possible evidence. If you did not have the authority to allow the examination, at least that would support you did not have the power to disallow any of the actions you are basing your defense upon.

A). How does my daughter have an obligation to follow the request?

she didn't but given your apparent control of the computer by delivering it for examination, I suspect their argument is that you allowed her to use the computer in a manner inconsistent with the order you were under.

B). If I did not do the occasional cleanings, my job would have been in jeopardy due to me not doing my duties. Is it reasonable to assume that the judge will agree with what I have done?

unless you were approved by the courts to perform this occasional cleaning, it matters not what your job requirements were. The courts power overrides any obligation you had to your employer. If you felt you had to comply with your work obligations, you needed to seek relief from the courts to do so.

C). If my daughter did not do the occasional cleanings, she would have failed in her courses due to lack of laptop. Is it reasonable to assume that the judge will agree with what she has done?

ever hear of Rent-A-Center? Your argument here is also not valid. Again, the courts order overrides any obligation to another.

D). What can I expect the judge to do after knowing all these circumstances?

I would expect him to be upset at the least and livid at the worst. What he can do is charge you with contempt if he believes you have knowingly violated the order. If he believes your arguments are simply a cover for an attempt to erase evidence, I would sit real still, listen to him very closely nodding affirmatively as appropriate and hope it doesn't result in anything more than chastisement and berating.

The lawsuit is filed accusing me of posting some comments over the internet. However, plaintiff never produced any posting (not even a single posting) linking my home IP address to the alleged postings, despite my discovery requests to produce any postings that are published from my home IP address. Therefore, my home is ruled out as a potential launching spot for those postings. In addition, I have proofs that some of those comments were posted from outside of Florida and some of them were from outside of USA (my job records and my passport prove that I have never been to outside of Florida or USA during those dates/times).

anything can be hidden if one really wishes to. The lack of a MAC address or an IP address does not mean your computers were not used from and IP address identifiable to you. MAC addresses and IP addresses can also be spoofed so even if neither leads to you, that in itself is not proof positive it was not you. It is when the MAC or IP leads to another real party is when a MAC or IP not associated with you becomes more of a valid proof.

 

[quincy]

... What [the judge] can do is charge you with contempt if he believes you have knowingly violated the order ...

From what dodo3 has written, there has been NO COURT ORDER to preserve evidence. The preservation notice was a discovery request.

There was still a DUTY to preserve computer evidence upon receipt of the discovery request, but there has been no violation of a court order. The only court order was for dodo3 to turn the computers over for forensic examination, and dodo3 complied with that order.

However, dodo3 made what could be two major mistakes by not consulting with an attorney first, when dodo3 was aware that there was a good possibility of a lawsuit being filed and, second, after receipt of the complaint.

The Florida Bar has followed the lead of a handful of other states by issuing an ethics opinion for attorneys dealing with clients and possible evidence on their computers (Ethics Advisory Opinion 14-1) - stating that it is not UNethical to advise a client to delete material from a computer prior to suit and prior to the receipt of a preservation notice. After the receipt of a preservation notice, the attorney would have advised (more than likely) that dodo3 avoid cleaning the computers. Although in both instances, facts matter.

dodo3 should not attempt to handle the case on his/her own. An attorney is really needed to help dodo3 protect any defenses s/he may have and to prevent dodo3 from acting in any additional way that can work to harm these defenses.

 

[justalayman]

quincy;3337128]From what dodo3 has written, there has been NO COURT ORDER to preserve evidence. The preservation notice was a discovery request.

My error but I see little substantive difference whether there be an order to preserve or a duty to preserve based on a request for discovery other than it is not a violation of a courts order and as such, risks the penalties for doing so. So he skates on the violation of a court order.

a good article on the matter:

http://www.slk-law.com/portalresource/lookup/wosid/cp-base-4-15502/media.name=/DAC.Docket%20Article%20E-Discovery%20Rules.pdf

dodo3 should not attempt to handle the case on his/her own. An attorney is really needed to help dodo3 protect any defenses s/he may have and to prevent dodo3 from acting in any additional way that can work to harm these defenses.

of course any time there is more than a buck ninety five involved one should at least consult with an attorney if not actually engaging one to represent them.