Spoliation by Third Party Warrants Evidentiary Sanctions, But Not Terminating Sanctions

The court denied plaintiff's motion to strike defendant's pleadings as a sanction for production of an altered hard drive from one of defendant's software contractors, but the court granted plaintiff's motion for evidentiary sanctions. "The appropriate remedy in this case is more challenging to determine than in other cases because the spoliator in this case . . . is a non-party, independent contractor for [defendant], and not within the Court’s jurisdiction. Nonetheless, it is [defendant] who benefits from the lack of any adverse creation dates . . . or other negative metadata on any of the CAD files that [plaintiff's] expert might have found, had files not been deleted. . . . There is no jury instruction, however, that can effectively protect the victim of a willful spoliation from the prejudice created by willful deletion of files with the manual running of a Ccleaner program. . . . The Court will not strike [defendant's] affirmative defenses and counterclaims – which is akin to the extreme sanction of a default or dismissal in this patent dispute – for the conduct of a non-party witness only partially under the control of [defendant]. . . . [The contractor] will not be allowed to testify at trial and evidence that originated with him will be excluded. . . . [Defendant] will not be allowed to rely on [its contractor's] deposition testimony for summary judgment purposes or at trial, and [it] will not be allowed to rely on any documents . . . sent from or to [the contractor] that [defendant] has produced."

Pacific Coast Marine Windshields Limited v. Malibu Boats, LLC, et. al., 6-12-cv-00033 (FLMD November 30, 2012, Order) (Baker, M.J.).