In Grubb v. Board of Trustees of the University of Illinois, the United States District Court for the Northern District of Illinois held that a plaintiff was not culpable for spoliation of a laptop through continued use where he was not knowledgeable as to the impact of daily use on electronic information and there was little evidentiary value to the laptop at the time of the alleged spoliation.   Slip Copy, 2010 WL 3075517 (N.D.Ill. 2010).

There, a former University of Illinois ("UIC") employee and orthodontist filed suit under the Computer Fraud and Abuse Act against UIC for remotely accessing his laptop computer, without his permission, to delete UIC software following his termination.  The employee used the laptop, owned by the American Board of Orthodontics ("ABO"), for one month after the alleged access, claiming that everything "worked fine," when ABO's attorney advised him to stop using the computer entirely to preserve evidence for a possible forsensic analysis and cautioned that any relevant data may already have been compromised.  The employee used the laptop for several more months and returned it to ABO as part of a routine equipment upgrade.  ABO, aware of the pending legal action and controversy surrounding the laptop, wiped the hard drive and a mirrored drive after several weeks believing that it would be impossible to determine what UIC had allegedly accessed as a result of the employee's continued use.  UIC moved for sanctions in the form of dismissal alleging that erasure of the laptop's contents rendered UIC incapable of proving the content of the laptop, what was accessed and whether any data or information was impaired.

In order to impose sanctions for spoliation, courts in the Seventh Circuit require a showing of bad faith, defined as destruction "for the purpose of hiding adverse information."  Id. at 3.  In reviewing whether the employee knew or should have known that continued daily use of the laptop would impact the evidentiary value of the laptop, the Court found that "it cannot be said that everyday people would possess an understanding of how data are stored and how access history can be reconstructed (or destroyed)."  Id. at 4.  Accordingly, the Court held that the employee was not culpable for destroying data through use of the laptop prior to being notified by ABO's attorney to stop using the laptop.  Furthermore, the Court found that the employee did not act unreasonably by returning the laptop to ABO, as it was ABO's property and counsel for ABO indicated they might conduct a forensic analysis on the laptop.  In addition, the Court found that there was likely little usable data on the laptop and generally no evidence of damage to or problems with the laptop that the alleged spoliation affected.  The Court held that sanctions for dismissal were not appropriate based on the lack of culpability and lack of evidentiary value,

For a copy of the opinion, click here.