• September 23, 2019

In the old days, spoliation was pretty straight-forward. Back in the day, spoliation of tangible objects might have been more difficult to detect (no “digital bread crumbs”) but, once detected, it was pretty easy to establish. Documents (or buildings, machine parts, or whatever form of evidence) existed and then disappeared…Tangible things were altered or destroyed.

Digital spoliation, on the other hand, is far more complicated.

This challenge is nicely illustrated in the lawsuit Rust Consulting (“Rust”) v. Schneider Wallace Cottrell Konecky Wotkyns, LLP (“SWCKW”), about which we’ve written previously.

According to SWCKW, Rust “destroyed” an “electronic portal system.”

Rust’s response appears to be that it the “electronic portal system” was just that, a portal — that is, a metaphorical doorway, gate, or other entrance –software code simply providing access or connections to other data, all of which was preserved and produced to SWCKW (“Rust’s decision to shut down the Portal was not, in fact, a decision to destroy evidence because all of the evidence was preserved, archived, and subsequently produced to Schneider Wallace in the course of this litigation” (here at p. 19)).

However, it seems that the portal itself is relevant to the case. There is a question about whether the portal ever worked. (See here at p. 21)

So, maybe the spoliation question in the case is not obvious or easily answered?

It seems that the portal in this case was “shut down” and “archived.” In real life, such terms would seem to suggest the evidence was preserved and retrievable, but, in the digital world maybe that is not to be the case. (See here at p. 7) (“Q. The portal, before we go on here, the portal is shut down. Is that the right word for it? A. Archived, correct, shut down….[I]t’s shut down. I don’t think it can be retrieved”).

What is archived if it is irretrievable?

Is this some form of zen koan (a paradoxical anecdote or riddle, used in Zen Buddhism to demonstrate the inadequacy of logical reasoning and to provoke enlightenment)?

Longtime Minnesota Litigator readers are familiar with our TAAFOMFT Series (“These are a few of my favorite things” (NOT)) and, in particular, our passion and appreciation (NOT) of e-discovery disputes and this, of course, is simply another festering limb of the fantastic beast. We look forward to seeing how U.S. Mag. Judge Tony N. Leung (D. Minn.) slays the zombie this time around…

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