Destruction of Disk Contents May Lead to a Default Judgment


A Federal Magistrate Judge recommended the defendants be defaulted and pay attorneys fee in Gutman v. Klein sends a clear message for litigation throughout the US. Regardless of whether the Federal Judge adopts the Magistrate Judge’s Recommendation, it is clear that we will see more headlines like this in the future in state and federal courts. Spoliation of relevant evidence is a serious problem whether the evidence is electronic or otherwise.

What Did the Defendants Do?

Apparently in this 5 year lawsuit the defendants were well-aware of that there was relevant evidence on one of their laptop computers. So the while the plaintiff’s expert waited about two hours at the defendant’s residence to get the laptop, apparently the defendant destroyed the contents of the laptop hard drive. When the laptop was turned over for copying “ was hot to the touch and a screw was missing from its hard drive enclosure.” Later it was determined that the defendant wiped off relevant evidence from the laptop hard drive by manually deleting files, and reinstalled Windows XP to try to cover his tracks.

Role of Forensic Review

My friend Erin Nealy Cox who is a Managing Director and Deputy General Counsel at Stroz Friedberg sent a story about this case since the Magistrate Judge appointed Stroz Friedberg as a Forensic Expert to analyze the laptop hard drive. Ultimately the Stroz Friedberg Expert Report demonstrated what the defendant had done. It seems clear that intentional destruction of the contents of the laptop hard drive was spoliation, and since +95% of all information is now electronic it seems likely that we will see more cases where parties intentionally destroy relevant evidence. Also it seems clear that courts will appoint Forensic Experts and Special Masters to assist them in analyzing electronic evidence. Having served as a Special Master in cases for more than 20 years it clear that a Special Master can represent the Court best in these types of cases where the parties’ experts cannot since they offer opinions generally in favor of their clients.

The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.

Search Tips:

You may use the wildcard symbol (*) as a root expander.  A search for "anti*" will find not only "anti", but also "anti-trust", "antique", etc.

Entering two terms together in a search field will behave as though an "OR" is being used.  For example, entering "Antique Motorcars" as a Client Name search will find results with either word in the Client Name.


AND and OR may be used in a search.  Note: they must be capitalized, e.g., "Project AND Finance." 

The + and - sign operators may be used.  The + sign indicates that the term immediately following is required, while the - sign indicates to omit results that contain that term. E.g., "+real -estate" says results must have "real" but not "estate".

To perform an exact phrase search, surround your search phrase with quotation marks.  For example, "Project Finance".

Searches are not case sensitive.

back to top