Optowave v. Nitikin: full copy of the Spoliation Order, Case No. 6:05-cv-1083-ACC-DAB, Doc. 90 (M.D. Fla. November 7, 2006). Now published in Westlaw at 2006 WL 3231422 and Lexis at 2006 Lexis 81345. We call this the Midnight Hacker case. Akerman represented the Plaintiff in a contract dispute. Defendant Nitikin, a computer expert, tried to fool the court and plaintiff with a story of unknown computer hackers breaking into his network in the middle of the night and erasing files, and missing hard drives.
Magistrate David Baker, who is known to be adept in computers himself, found the defendant’s stories incredible. Magistrate Baker also found that the preservation letter, sent out by Plaintiff’s counsel (an Akerman attorney), put the defendant on notice that he should not have reformatted a key employee’s hard drive when he left the company without first preserving his emails and documents. The Court found that negligence alone was not sufficient for a severe spoliation sanction of default, that bad faith was also required. But the Court found evidence of bad faith in this case from the intentional destruction of key emails, and for this reason entered a “practically dispositive” adverse inference, that the missing emails proved the plaintiff’s case.
December 18, 2007 at 8:20 pm
[...] but usually arises from suspicious circumstances that suggest spoliation, such as a story of a midnight hacker erasing all of your files, or the loss of a laptop with all of your records just before a deposition [...]