Darren Chaker notes window washing may be harmful to your case. In Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages.
In a more recent case, Darren Chaker found Watkins v. Infosys, Case No. 14-0247 (W.D. Wa., July 23, 2015), Plaintiff had run the program and wiped files and folders from her work computer hard drive and eleven external drives (all of which the expert concluded had been connected to her computer before the wipe). Defendant sought terminating sanctions, requesting that the court dismiss Plaintiff’s case. The court considered the appropriate sanction for the misconduct, observing that the sanction of dismissal requires the court to weigh i) the public interest in quick litigation, ii) the court’s needs to manage its dockets, iii) the risk of prejudice to the party seeking the sanctions, iv) public policy in favor of deciding a case on its merits, and v) the availability of less drastic sanctions (citing Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 1995).) The court concluded that, while Plaintiff’s behavior presented a “close call,” Plaintiff’s behavior did not warrant complete dismissal, and that the court would instead decide the case on its merits (indeed, the court granted summary judgment in favor of Defendant). Rather, the court issued a show cause order requiring Plaintiff to show why the court should not sanction Plaintiff monetarily for the discovery misconduct.
In the spoliation context, the court must also consider the “prophylactic, punitive and remedial rationales underlying the spoliation doctrine.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999). Thus, the sanction should “(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence.” Id.