This post examines an opinion by a U.S.District Court Judge who sits in the U.S. District Court for the Eastern District of California: Olney v. Job.com, 2014 WL 5430350. She began the opinion by explaining that
on August 12, 2012,
[Peter
Olney] registered his resume with a website called `Resume–Now’ as part of his
efforts to seek new employment. Resume–Now is owned and operated by LiveCareer,
Inc. (`LiveCareer). Registration with Resume–Now generally consists of three
steps. First, the registrant is prompted to create or upload a new resume.
Second, the registrant is asked for information regarding the job he or she
seeks. Third, the registrant is asked to enter and confirm his or her email
address.
According to Job.com, at this point the
registrant also (1) is given an opportunity to review Resume–Now's terms of use
and privacy policy; (2) is asked to acknowledge that he or she has read and
agrees to the terms of use and privacy policy; and (3) is allowed to uncheck a
box that reads: `[R]eceive . . . free information on managing my career.’
On August 13, 2012, [Olney] used
Resume–Now's resume posting service, a service that is offered only to
subscribing members. To initiate the resume posting service, [he] clicked a
button labeled: `Post Resume. Instantly post your resume to 90 + job boards.’
[Olney] was then directed to the resume posting splash page, where [he] was
given the option to choose from various categories of job-search websites where
he wished his resume to be posted. [Olney] chose to post his resume on `General
Sites.’ Upon choosing `General Sites,’ [he] was directed to a pop-up page
displaying a list of additional job sites where his resume would be sent.
`Job.com’ was one of the websites listed in the pop-up page.
Olney v. Job.com, supra.
The judges on to explain that as part of this process, Olney was required to
provide additional
contact information. The website reads: `Enter your mailing address and current
phone [number] so that recruiters and potential employers can contact you.’
[Olney] entered his cell phone number on this page. [He] was then given another
chance to review Resume–Now's terms of use and privacy policy. [Olney] reviewed
the policy and completed the resume posting process by clicking `Post.’
On August 17, 2012, [Olney] registered
an account withJob.com via Resume–Now's website. The registration process
consisted of populating fields on five pages, one of which was the `Profile’
page. On the Profile page, [Olney’s] cell phone number was entered in the `Home
Phone’ field. Job.com asserts that [Olney] also left a box checked that read `[B]y
keeping the box above checked, I'd like to be contacted by phone to discuss
educational opportunities to help prepare me for my dream career.’ Although the
box was checked by default, a registrant may uncheck the box if he or she
wishes to opt out of the service. [Olney] claims that he never visited Job.com,
never saw the opt-out box, and therefore could not have checked it nor left it
unchecked.
Job.com forwarded [Olney’s] profile,
including his phone number, to a third party, Windy City. Windy City operates
the Windy City Call Center, which is used to provide `education leads’ to
higher learning institutions. Job.com, through Windy City, placed multiple
calls a day to [Olney] on August 17, 2012, through September 4, 2012, for the
purpose of sellingJob.com and Windy City's or a third party's services.
Olney v. Job.com, supra.
On October 19, 2012, Olney filed this lawsuit on behalf of
himself and all other similarly
situated individuals. According to the currently operative Second Amended Complaint (`SAC’), [he] seeks statutory damages and injunctive relief
againstJob.com and Windy City for negligent willful violations of the Telephone Consumer Protection Act (`TCPA’).
Olney v. Job.com, supra.
The issue the judge addresses in this opinion involves
“motions for sanctions against [Olney]” filed by Job.com and Windy City “for
spoliation of evidence during the course of discovery.” Olney
v. Job.com, supra. As Wikipedia explains, in U.S. law
“discovery” is “the pre-trial phase in a lawsuit in which each party can obtain evidence from the opposing
party by means of discovery devices including requests for answers to interrogatories,
requests for production of documents, requests for admissions and depositions.”
On October 4, 2013, Job.com took Olney’s deposition and
asked him “about his job search and job-related websites he visited at or
around the time he paid to have his information provided toJob.com.” Olney v. Job.com, supra. He was also asked to “identify the computer he used to perform his
job search” and indicated he used his home computer. Olney v. Job.com, supra. Olney was
“instructed not to `take any steps to delete any Web browsing history or
any information from that computer and we may be requesting access to that
through discovery.’” Olney v. Job.com,
supra. On October 11, 2013, Job.com served Olney
with a set of Request for Production of Tangible Things that sought production
of
(1) the cell phone [Olney] alleges he
was called on in violation of the TCPA; and (2) the home computer [he]
testified at his deposition he used to conduct his job search. Regarding [his]
home computer, Job.com specifically indicated its examination would include `internet
history, cookies, and temporary files related to [Olney’s] access and visitation
of job-related websites’ as well as `local electronic files pertaining to any
and all emails related to [his] job search and access of job-related websites,
including any attachments to those emails, and any and all resumes or cover
letters.’ . . . [Olney] (Doc. objected to Job.com's request for production. . .
.
On January 10, 2014, following an
informal telephonic conference with the Court, [Olney] was ordered to turn over
his computer and phone to the parties' agreed-upon neutral expert for imaging
by no later than January 14, 2014, which was extended by stipulation of the
parties to January 17, 2014. . . .[Olney’s] computer was turned over to neutral
expert BCT Consulting (`BCT’) on Friday, January 17, 2014. The results of BCT's
initial investigation were produced on January 21, 2014. . . .
Olney v. Job.com, supra.
BCT's report indicated the presence of a computer program
called
`Winclear’ on [Olney’s] computer. This
program is used to delete internet history, cookies, and web files. On February
19, 2014, the parties held a conference with Marshall Moll of BCT and requested
further investigation of the Winclear program. On February 21, 2014, Moll
provided further investigation results which revealed the Winclear program was
run only once on January 16, 2014, the day before [Olney] turned over his
computer for inspection. . . .
[Olney] informedJob.com that Winclear
was not run manually by [him], but had `popped up’ on [his] computer. The
parties again contacted Moll at BCT to ask him to investigate the issue further
in light of [Olney’s] explanation.
Moll responded . . . on March 3, 2014,
indicating it was `very unlikely’ that the program ran on its own. Moll also
discovered two additional programs, PC Doctor and PC Optimizer Pro, which were
run on January 16, 2014, and January 17, 2014. Moll was asked to prepare a report,
which [he] produced on April 1, 2014. . . . Job.com's and [Olney’s] counsel met
and conferred regarding Job.com's request to obtain its own expert to analyze [his]
hard drive, but [Olney] refused to stipulate to further expert examination of
the computer data.
Olney v. Job.com, supra.
On May 1, 2014, the parties held an “informal telephonic
discovery dispute conference with the judge,” after which he issued an order
allowing Job.com to retain its own expert to examine a mirror image of Olney’s
hard drive. Olney v. Job.com, supra. Job.com
hired forensic expert Global Digital Forensics, Inc. (“GDF”) to inspect the
image. Olney v. Job.com, supra. On May 30, 2014, GDF reported its
findings:
GDF concluded that the computer clock
setting had been intentionally manipulated to roll the computer date backwards
to December 1999. The computer system event log showed four entries confirming
the date change was a user-initiated action, not something the system did
without intervention. . . . GDF also concluded that a program named PC
Optimizer Pro was initially installed in November 2012, and re-installed on May
27, 2013. The program was set to run on a scheduled basis to destroy and remove
data from the computer hard drive. The last time PC Optimizer was run, on January
17, 2014, 2,318 items were `cleaned’ off the system. Between December 21, 2012,
and December 28, 2013, a total of 15,686 files were purged from the system. . .
.
GDF summarized the Windows prefetch
data in relevant part as follows:
`It is possible to determine the number of
times a program has been used, and the last date it was run, by examining the
metadata of the prefetch files.’
`Based on the analysis of the extracted
metadata . . . the PC Optimizer program was run only once, on January 17, 2014.
Since we know the PC Optimizer program was used more than once, evidenced by
the recovered log files, the only way the prefetch metadata could display a
single use is that the prefetch files were deleted. Additional review of
other program files listed in the prefetch folder also indicate single or very
few runs. This condition would indicate that multiple prefetch files were
deleted. Further analysis indicated that in excess of 70 prefetch files were
created between January 12, 2014, and January 17, 2014. . . . GDF concluded the Winclear program was run on [Olney’s]
computer and detected 12,775 items on January 16, 2014.
Olney v. Job.com, supra.
At that point, Olney retained “Jeffrey Hansen to review
GDF's findings and conduct another evaluation of Plaintiff's computer regarding
the spoliation issue.” Olney v. Job.com, supra. Hansen reported,
among other things that the data on the computer
does not reflect that [Olney] manually
attempted to manipulate the date, but that the computer system was `simply synchronizing
with the NTP server.’ Any log entries showing a change in date was momentary
and showed only that Windows . . . was synchronizing its time with an NTP
server. . . .
GDP determined that the PC Optimizer
program was set to run automatically every two weeks, three times a week, on
Tuesday, Thursday, and Saturday at 11 a.m. Hansen determined that PC Optimizer
was actually configured to run every Tuesday, Thursday, and every other
Saturday at 11:00 a.m. Nevertheless, the data on the computer indicates the
program was last run on Friday, January 17, 2014. Hansen
asserts that when PC Optimizer is scheduled to run and the time it actually
runs can vary. For example, [he] notes PC Optimizer ran on December 16, 2013,
which was a Monday, and not a regularly scheduled scan day. Hansen states there
are many reasons why the scheduled run of PC Optimizer could be delayed, such
as the computer being placed in sleep mode at the time of a scheduled run. Hansen opines there is no evidence to suggest [Olney]
had any involvement with PC Optimizer being run on a day other than when it was
scheduled, and it ran on an unscheduled day because the computer was sleeping
or shut down on the day it was scheduled to run. . . .
The version of on [Olney’s] computer
was an unregistered version, and Winclear's system summary shows that no items
were removed on the previous scans. According to GDF, there was a registry in
the Windows Operating system that tracked access to files in an area known as
`mru’ or `Most Recently Used.’ Within this registry key, there was direct
navigation and access to a Winclear log. When the drive was searched, the log
was identified in the recycle bin, indicating it had been deleted by the user.
Hansen opines that [Olney] did not perform the deletion, but that PC Optimizer
scanned that file, and the access time of the file was changed. PC Optimizer
then sent the file to the recycle bin, and emptied the recycle bin. . . .
Hansen also notes the log shows when the file was created and deleted. The
Winclear log file was sent to the recycle bin at 3:43 and 20.716999 seconds,
and 0.007999 seconds later the file was deleted. [Olney] could not have deleted
the file, moved it to the recycle bin, and emptied the bin all within 0.00799
seconds. Moreover, PC Optimizer runs using the pmojjo2003 account on [his]
computer. Because GDF mistakenly assumed [Olney] was the only user of that
account, GDF pointed to this user account recorded in the log as additional
evidence that [he] was manually directing the deletions of the Winclear scan.
In actuality, PC Optimizer also runs under that account. In sum, Hansen opines
that only a software program can access a file, delete it, and navigate to the
recycle bin to empty it in 0.007999 seconds; PC Optimizer can perform such a task,
and would have done so under Plaintiff's user account pmojj o2003.
When comparing files deleted from the
recycle bin, the MFT entries showed files were deleted on January 18, 2014,
after [Olney] turned his computer over to BCT. This deletion occurred before a
`dd image’ was made of the hard drive—i.e., `all forensic examinations done on
this drive . . . , were done on an image in which log files and restore points
that are at issue in this case [were] modified, accessed, or deleted while in
the custody of the neutral expert.’ . . . Six items were deleted on January 18,
2014. According to Hansen, the system was not turned on after the last entry in
the log files of January 17, 2014, yet the drive has time stamps of January 18,
2014, spanning over a four-hour period showing 60 files being created, accessed,
modified, or deleted. `This can only be done by booting a computer with a
different operating system than what is on the drive and accessing that drive.’
Mr. Hansen opines that either the neutral expert was not reliable or erased the
data purposefully. . . .
Olney v. Job.com, supra. In sum, Hansen “opines [Olney] is a novice
computer user, the neutral expert deleted or modified files which calls into
question the integrity of any examination of the hard drive, and the web
history and files were automatically deleted by PC Optimizer.” Olney v. Job.com, supra.
There was more back and forth between the parties, one
result of which was that Olney got a supplemental report from Hansen which
said, among other things, that with regard to
PC Optimizer's scan being
cancelled on January 17, 2014, users will routinely stop scans when they
interfere with the processing speed of the computer. Also, if [Olney] were
truly attempting to delete data, he would not have stopped the
scan. Winclear was purchased by Plaintiff in 2008, but [he] allowed his license
to expire, rendering the program unregistered. When unregistered, Winclear will
run automatically but will not delete data. According to Hansen, `Winclear did
not delete anything long before litigation began and to investigate it further
would accomplish nothing.’
Olney v. Job.com, supra (emphasis in the original).
As the result of all this, Job.con and Windy City each filed
motions for sanctions, asking the judge to dismiss Olney’s Complaint, pay them
monetary sanctions for the “fees and costs associated with their motions”
and/or give “an adverse jury instruction” if and when there was a trial. Olney
v. Job.com, supra. Olney
argued, in response, that any all data relevant to the lawsuit “was deleted
long before his October 2013 deposition”, that he did not make any deliberate
effort to delete relevant data and that since “no relevant data” was destroyed
“at a time when the duty to preserve was triggered”, no sanctions were
warranted. Olney v. Job.com, supra.
In deciding whether sanctions were warranted, the judge
explained that “to determine whether spoliation has occurred, the Court must
consider (1) when [Olney’s] duty to preserve evidence was triggered; (2)
whether relevant evidence was destroyed or altered by [him] after the duty was
triggered; and (3) whether [he] acted with a culpable state of mind in destroying
or altering relevant evidence. Olney v.
Job.com, supra. She found, first, that by August of 2012
Olney should have known “his computer data was relevant to Defendants'
defenses”, which meant he had a duty to preserve evidence. Olney v. Job.com, supra. She also found Olney had destroyed
and/or altered relevant evidence after August 2012. Olney v. Job.com, supra. And, finally, that he acted “with a
culpable state of mind”. Olney v. Job.com, supra. As to the last issue
the judge explained that Olney’s use of PC Optimizer in November 2012 was
at least negligent. Even though the
duty to preserve computer data, particularly internet data, should have been
known to [Olney] when he contemplated his lawsuit in August 2012, neither he
nor his attorneys took any steps to mirror image [his] hard drive at that time
or at any time after the lawsuit was filed in October 2012. [He] installed PC
Optimizer in November 2012, only one month after filing his lawsuit. . . .
It has not been established that [Olney]
knew PC Optimizer would delete internet history relevant to the litigation and
installed it for that purpose. [His] deposition testimony indicates, however,
that he had enough computer knowledge to understand that PC Optimizer would
delete files on his computer. In light of the pending litigation, [Olney]
should have ascertained the precise nature PC Optimizer's deletion
function before it was installed. The failure to take steps to
do so was negligence.
Olney v. Job.com, supra (emphasis in the original). She also found that in July, 2013,
defendants served discovery requiring [Olney]
to identify all websites where he posted his resume, which further implicated
the relevance of [his] use of his computer during his job search as a likely
source of potentially relevant evidence to Defendants' defenses. Yet, neither [Olney]
nor his counsel made an attempt to mirror image the hard drive or confirm
whether evidence on the computer was being preserved.
At [Olney’s] October 2013 deposition,
he and his attorneys were expressly directed by Job.com's counsel to preserve
internet history on [his] computer, but no steps were taken to do so.Job.com
sought production of [Olney’s] computer data through formal discovery later in
October 2013, and even at this point no steps were taken by [Olney] or the
three law firms representing him to either mirror image the computer or
ascertain whether data on the computer was being preserved. . . .
In sum, [Olney] was negligent with
regard to the installation of PC Optimizer in November 2012 and its routine
deletions of data after installation; he was grossly negligent in
failing to take any steps whatsoever to preserve his computer data after
Defendants' counsel instructed him at his October 2013 deposition to preserve
his computer data; and, as discussed below, [his] failure to preserve evidence after the court
ordered production of his computer hard drive constituted willful and deliberate spoliation.
Olney v. Job.com, supra (emphasis in the original).
The judge therefore found that the appropriate sanction was to
give the jury an adverse inference instruction if and when the case went to
trial. Olney v. Job.com, supra. More precisely, she held that, if and when
the case went to a jury trial, the jury would be given this instruction:
Plaintiff has failed to prevent the
destruction of relevant evidence for Defendants' use in this litigation. This
is known as the `spoliation of evidence.’
I instruct you, as a matter of law,
that Plaintiff failed to preserve evidence after his duty to preserve arose.
This failure resulted from his failure to perform his discovery obligations.
You shall presume that Defendants have
met their burden of proving the following two elements by a preponderance of
the evidence: first, that relevant evidence was destroyed by Plaintiff after the
duty to preserve arose. Evidence is relevant if it would have clarified a fact
at issue in the trial and otherwise would naturally have been introduced into
evidence; and second, the lost evidence was favorable to
Defendants.
Whether this finding is important to
you in reaching a verdict in this case is for you to decide.
Olney v. Job.com, supra (emphasis in the original).
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