Defense Attorneys Sanctioned for Obstructing Forensic Inspection of Defendant’s Computer Servers
Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008)
In this wrongful termination case, plaintiff sought the production of certain “DSFG Reports” which summarized information regarding the sales performance of employees in relation to their peers, and other key sales information. Plaintiff knew about the existence of the DSFG Reports because he had received a facsimile of the June 2004 DSFG Report before he was terminated. The fax was sent anonymously but the fax number was from defendant’s Stamford, Connecticut office. The June 2004 DSFG Report revealed that plaintiff was leading his division in sales performance. After nine months of discovery, defendant had produced only four additional DSFG Reports. In October 2007, plaintiff moved to compel production of the remaining seven DSFG Reports from the year prior to plaintiff’s termination.
The court held a telephone conference to discuss the motion to compel and the whereabouts of the seven remaining DSFG Reports. During the conference the attorneys maintained their respective positions on the matter: plaintiff’s attorney believed that the defense attorneys were hiding or had deleted the DSFG Reports, and defense counsel gave assurances that such reports could not be located. The court proposed that defendant permit a forensic computer consultant to inspect its computers, to which the attorneys agreed. The court entered an inspection order, which included the following provisions: