If a former employee and employer have a dispute that has or will likely lead to litigation, they have a duty to preserve relevant evidence. If either of them deletes relevant e-mails from their respective computers, they may find the sanction by the Court to be substantial. Such a sanction was ordered in the decision from the Massachusetts Superior Court in the case of Israel M. Stein, M.D. v. Clinical Data, Inc. Stein, a physician, was the founder of Clinical Data, Inc. who served in various executive positions with the company until he resigned. Stein’s employment agreement with Clinical Data provided him severance pay and benefits after resignation. A dispute arose between his former employer and he related to his competitive conduct both during employment and after his resignation alleged to be in violation of the agreement as well as his alleged releasing of confidential information to the detriment of his employer. The Court noted that Stein knew that his e-mails with third parties, from the time of his resignation forward, would at least potentially be relevant to the litigation. That knowledge gave rise to his duty to act scrupulously and carefully to preserve all such e-mails. Notwithstanding that duty, Stein installed on his computer a program which erased all deleted e-mails from his computer automatically every seven days, McAfee Quick Clean Software with Shredder. Thereafter, upon receiving service of Clinical Data’s motion seeking examination of his computer, Stein immediately made use of Drive Scrubber 3 to remove from the computer permanently whatever pertinent materials may have been present there as of the date of the motion. While Stein had several explanations why he was innocent of intentionally spoiling evidence through the erasing of e-mails, the Court found him not credible and ultimately sanctioned him by dismissing all of his claims against Clinical Data. Further, the Court granted Clinical Data the right to collect its reasonable discovery costs starting when it filed its motion to examine Stein’s computer related to seeking to obtain the discovery of the e-mails. In regard to Clinical Data’s counterclaim against Stein the judge held that she would instruct the jury that it may infer from his destruction of the e-mails that additional relevant materials not yet discovered existed but had not been recovered or produced, and that such materials would have provided evidence of facts inconsistent with Stein’s position as to Clinical Data’s claims.
The lesson from this case is that employers and employees should understand that they have a duty to preserve evidence, including electronic evidence. In particular, when the monetary stakes are high, forensic computer experts may be retained to examine computers to determine whether e-mails have been intentionally erased. Both employers and employees should be meticulous, once they know of a potential claim they may make or one that could be made against them, to save all relevant e-mails and any other evidence whether it is hurtful or helpful to their claims or defenses.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].