Court Denies Request for Adverse Inference where Failure to Preserve Hard Drive Does Not Suggest Fraud or Fabrication

Liggett v. Rumsfeld, 2005 WL 2099782 (E.D.Va. Aug. 29, 2005)

William Liggett (“Liggett”), an information technology specialist working for the United States Department of Defense, Defense Logistics Agency (“DLA”) sued Defense Secretary Donald Rumsfeld (“Rumsfeld”) alleging discrimination based on race, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964.

In connection with an unrelated criminal investigation, a review of the agency’s firewall revealed that Liggett had accessed sexually explicit Internet sites. Liggett’s computer was examined, and further evidence of such access was discovered. Liggett responded that he had not accessed the sites, the information could have gotten onto his computer in other ways, his password was not secure, and that his computer was not new when it was assigned to him. Liggett was suspended for ten days.

Liggett tried to get a record of the computer or the computer itself for study, but was unsuccessful and requested an adverse inference based on DLA’s failure to preserve the hard drive. The Court found that DLA should have preserved the evidence, but its failure does suggest fraud or fabrication. The Court cited precedent which indicates that mere negligence is insufficient to merit an adverse inference and some quantum of blameworthiness is required. Liggett’s supervisors learned of the explicit material from an unrelated investigation. They did not initiate the investigation, nor did they examine the machine themselves. Liggett raised no issue of material fact regarding whether the investigation of his computer was based on discrimination or retaliation.

The Court granted summary judgment for Defendant on all claims.