Case Law: E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc.

Court Imposes Adverse Inference Sanction for Bad Faith Spoliation

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., 2011 WL 2966862 (E.D. Va. July 21, 2011). In this ongoing trade secrets litigation, the plaintiff sought sanctions alleging the defendant spoliated evidence by deliberately destroying relevant ESI and engaged in prolonged efforts to conceal misconduct. Offering a "no harm, no foul" defense, the defendant claimed that because many of the deleted files were recovered, no spoliation occurred and the plaintiff suffered no prejudice. Finding the defendant did not engage in a widespread effort to delete relevant information, the court however determined the litigation hold notices were inadequate and, according to forensic analysis, several key employees intentionally and in bad faith destroyed approximately 12,836 e-mails and 4,975 electronic files. Declaring these deletions significant in substance and number, the court imposed an adverse inference instruction and ordered payment of attorney fees and costs incurred as a result of the spoliation.

Commentary

This case highlights an issue that unfortunately is no longer an anomaly in the world of ediscovery. Parties continue deleting information and failing to adhere to a proper preservation and litigation hold protocol. In this case, the defendant attempted to avoid blame by noting that numerous documents were recovered – a hard sell to judges that continue to grow wearier of parties skirting their ediscovery obligations. Further, this case demonstrates the power of forensics. Professionals trained in the art of computer forensics are invaluable to investigations and uncovering the truth about data. However, unlike the portrayals in popular primetime dramas, forensics is a delicate art that requires diligence, proper chain of custody protocols and experience.

Curious to learn more?  Read our recent article: Computer Forensics – Not As Seen on TV.