Scribd Logo
Upload

Welcome to Scribd!

  • Move - Zillow - Ruling 5 16

    Uploaded by

    Todd Bishop
    5K views24 pages
    A King County Superior Court Judge has denied Move Inc.'s motion for sanctions against its real estate rival Zillow after a lengthy hearing on allegations that two former Move executives hired by Zillow purposefully destroyed evidence relevant to the case.

    Original Title

    Move_Zillow_Ruling 5 16 (1)

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    A King County Superior Court Judge has denied Move Inc.'s motion for sanctions against its real estate rival Zillow after a lengthy hearing on allegations that two former Move executives hired by Zillow purposefully destroyed evidence relevant to the case.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    5K views24 pages

    Move - Zillow - Ruling 5 16

    Uploaded by

    Todd Bishop
    A King County Superior Court Judge has denied Move Inc.'s motion for sanctions against its real estate rival Zillow after a lengthy hearing on allegations that two former Move executives hired by Zillow purposefully destroyed evidence relevant to the case.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 24
    SUPERIOR COURT OF WASHINGTON FOR KING COUNTY MOVE, INC., a Delaware corporation, REALSELECT, INC., a Delaware corporation, } No. 14-2-07669-0 SEA TOP PRODUCER SYSTEMS COMPANY, a _)_ FINDINGS OF FACT, CONCLUSIONS OF ) ) ) British Columbia unlimited liability company, ) |W AND ORDER . NATIONAL ASSOCIATION OF MOTION FOR SPOLIATION REALTORS®, an Illinois non-profit corporation, and REALTORS® INFORMATION ) NETWORK, INC., an Illinois corporation, ) ) Plaintiffs, ) ) vs. ) ) ZILLOW, INC., a Washington corporation, ) ERROL SAMUELSON, an individual, CURT) BEARDSLEY, an individual, and DOES 1-20, ) ) Defendants. ) ) 1 BACKGROUND Plaintiffs Move, Inc., and its subsidiaries, RealSelect, Inc. and Top Producer Systems Company (“Move”) conduct business in the online residential real estate industry. The National Association of Realtors (“NAR”) is a member-based organization made up of real estate professionals. Realtors® Information Network, Inc. is a subsidiary of NAR. Move and NAR are parties to an operating agreement and a strategic partnership which provides for Move's operation of the NAR-owned website realtor.com. FINDINGS OF FACT AND CONCLUSIONS OF ‘The Honorable Sean P. O'Donnell LAW--1 516 Third Avenue, W-817 ‘Senile, WA 98108 (206}477-1501 Bow Defendant Errol Samuelson was an officer of Move, Move's Chief Strategy Officer, and President of realtor.com before he resigned on March 5, 2014 and joined defendant Zillow, Inc. (‘Zillow") as its Chief Industry Development Officer. Zillow, Move and realtor.com are ‘competitors. Defendant Curt Beardsley was Move'’s Executive Vice President of Industry Development before he resigned from Move on March 17, 2014 and joined Zillow as a Vice President, Industry Development. This lawsuit alleges, among other things, that defendants Zillow, Samuelson and Beardsley violated the Washington Uniform Trade Secrets Act (RCW 19,108); that defendants Errol ‘Samuelson and Curt Beardsley breached their fiduciary duties to Move; and that all three defendants tortiously interfered with Move’s business expectancy; and tortious interfered with Move’s contractual relations, ‘The matter currently before the Court is Plaintiffs’ Motion For Evidence Spoliation Sanctions Against Defendants. The motion seeks terminating sanctions against all three defendants or, altematively, instructions mandating the jury presume that the defendants misappropriated evidence from Move to benefit Zillow. After revie ng the submissions of the parties, the Court determined that an evidentiary hearing was the appropriate manner by which to decide the issues raised by Plaintiffs, Accordingly, the Court held such a hearing on April 11 ~ 15, and 25, 2016. The following witnesses testified at the hearing: Curt Beardsley, Errol Samuelson, Tara Samuelson, Kathleen Philips, Spencer Rascoff, Byron Lloyd-Jones, Bruce Hartley and Andrew Crain. ‘The Court has also considered the designated deposition testimony of Curt Beardsley, Errol Samuelson, Spencer Rascoff, Byron Lloyd-Jones, Andy Crain, Bruce Hartley, Tara Samuelson, FINDINGS OF FACT AND CONCLUSIONS OF ‘The Honerahie San P, O*Donael Seatle, WA 98104 (206}477-1501 aoa wy es wn 10 1 12] 13 14 15| 16] 1 18} 19 20) 2t 22| 23] 24 25) 26 Brad Owens, Robert Evans, Carol Brummer, Steve Berkowitz, Paul Stephen, Russell Cofano, and Rachel Glaser. Additionally, the parties admitted 84 exhibits into evidence at the hearing, I. ANALYSIS As has been previously stated by courts in Washington and beyond, spoliation is the intentional destruction of evidence. Henderson v. Tyrell, 80 Wa.App. 592, 605, 910 P.2d 522 (1996). Spoliation is “a term of art, referring to the legal conclusion that a party's destruction of evidence was both willful and improper.” Karl B. Tegland, 5 Washington Practice: Evidence, § 402.6, at 37 (Supp.2005), A party’s actions are improper and constitute spoliation when the party has a duty preserve the evidence in the first place. Washington does not recognize a general duty to preserve evidence, However, a duty to prescrve evidence may be triggered before formal notice of a lawsuit is served. “[E]ven where an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.”), Henderson 80 Wn. App. at 611, n.7 quoting Fire Ins. Exch, v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911 (1987). In the context of a spoliation motion, where the sanctions could result in termination of the case, fundamental faimess would require that the “potential for litigation” be more than a possibility or a fear. The potential for litigation should be sufficiently evident that its imminence gives “clear notice of an obligation to preserve evidence.” Leon v. IDX Sys. Comp., No. C03-1158 P, 2004 WL 5571412, at *4 (W.D. Wash. Sept. 30, 2004), affd, 464 F.3d 951 (9th Cir. 2006). This isnot to say that such notice cannot arise pre-litigation; it can. But the mere possibility of litigation, FINDINGS OF FACT AND CONCLUSIONS OF ‘The Honorable Scan P. O'Donnell LAW--3 S16 Thied Avenue, W817 ‘Seale, WA 98104 (206}477-1501 23] 24| 2s| 26| in the context of a spoliation sanction, would be insufficient to trigger the notice of the duty to preserve, In addition to clear notice of the duty to preserve evidence, the alleged act of evidence destruction must be “by someone over whom the potentially sanctioned party had some control.” Cook v. Tarbert Logging, Inc., 190 Wn. App. 448, 462, 360 P.3d 855, 863 (2015), review denied 367 P.3d 1083 (Wash. 2016). In other words, a party cannot be sanctioned if the destruction occurred by another individual over whom the accused party could not exercise its authority. In deciding whether to impose a spoliation sanction, Washington courts apply two broad factors: 1) the potential importance or relevance of the missing evidence and 2) the culpability or fault of the adverse party. The severity of a particular act of destruction, in terms of the relevance or importance of the missing evidence or of the culpability ofthe actor, determines the appropriate remedy. Cook v. Tarbert Logging, Inc., 190 Wn. App. at 462, Whether the missing evidence is important or relevant obviously depends on the particular circumstances of the case. Henderson, 80 Wn. App. at 607. In other words, the relevance and materiality (or importance) of the destroyed information should be a co-equal factor with the state of mind of the alleged spoliator when analyzing what an appropriate sanction may be. This is consistent with the potentially severe consequences of a spoliation sanction. Relevance and Importance of Information Allegedly Destroyed ‘Washington courts agree that prior to the imposition of a spoliation sanction, the evidence at issue must be relevant and material to the case at hand. “Where relevant evidence which would properly be part of a case is within the control of a party whose interests it would naturally be to Produce it and he fails to do so, without satisfactory explanation, the only inference the finder of fact may draw is that such evidence would be unfavorable to him.” Pier 67 v. King County, 89 FINDINGS OF FACT AND CONCLUSIONS OF ‘The Honarbl Son PO Des Seale, WA 9808 (205}477-1501 wee a aw 19 1 YY 13) 14 15] 16 17 18] 19 20 2y 22| 23] 24] 25) 26| Wn.2d 379, 385-86, 573 P.2d 2 (1977) (emphasis added); see also Homeworks Const., Ine. v Wells, 133 Wn.App. 892, 899, 138 P.3d 654 (2006) ({In determining whether to impose a spoliation sanction], “the trial court weighs 1) the potential importance or relevance of the missing evidenee...”). A number of courts have addressed how to assess the importance or relevance of allegedly missing information and whose burden it is to show that relevance and importance. In a particularly insightful and thorough opinion by U.S, District Court Magistrate Judge Paul Grimm, the Court noted that “relevance” for purposes of spoliation sanction is a two-pronged finding of both the relevance of the missing evidence and the prejudice arising from its destructi n. In the context of spoliation, lost or destroyed evidence is relevant if a reasonable tier of fact could conclude that the lost evidence would have supported the claims or defenses of the party that sought it. It is not enough for the evidence to have been sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence, i.e., to have ‘any tendency to make the existence of any fact thet is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Moreover, for the court to issue sanctions, the absence of the evidence must be prejudicial to the party alleging spoliation of evidence, Put another way, a finding of “relevance” for purposes of spoliation sanctions is two-pronged finding of relevance and prejudice, Spoliation of evidence causes prejudice when, as a result of the spoliation, the party claiming spoliation cannot present evidence essential to its underlying claim. Prejudice can range along a continuum from an inability to prove claims or defenses to little or no impact on the presentation of proof. Generally, courts find prejudice where a party's ability to present its case or to defend is compromised. The court considers prejudice to the party and prejudice to the judicial system. Victor Stanley. Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 531-32 (D. Md. 2010) (internal quotations and citations omitted). FINDINGS OF FACT AND CONCLUSIONS OF ‘The Honorable Sean P. O'Donnel! LAWS S16 Thiel Avenue, W-817 Seat, WA 98106 (206}477-1501 Sie oe wows on 1 2 13 14] 15 16| 13] 19| 20] 21 22| 23] 24| 25] 26| Professor Wigmore has similarly remarked in the context of potentially spoliated evidence that the destruction of a relevant document or other evidence may be inferred to be unfavorable to the spoliator so long as the moving party introduces some evidence tending to corroborate that the document “actually destroyed or withheld is the one as to whose contents it is desired to draw an inference.” 2 Wigmore on Evidence Sec. 291, pg 228. Even when relevance may be inferred by the conduct of the spoliating party as a result of willful or bad faith destruction, s still the aggrieved party's burden to present some minimal showing that the absent evidence would have been important to its case. In Leon, for example, the spoliator admitted that the files he deleted were relevant to the case: “Before Dr. Leon retumed the laptop to IDX, Dr. Leon's counsel acknowledged in an October 24, 2003, email to IDX attorneys that both sides recognized the relevance of the material on the laptop stating that: ‘in many instances the files are the original form of potentially relevant evidence.” Leon v. IDX Sys. Comp, No. CO3-1158 P, 2004 WL 5571412, at 3 (W.D. Wash. Sept. 30, 2004), affd, 464 F.3d 951 (9th Cir. 2006). The spoliator also stated in his deposition that he wiped his hard drive specifically to avoid having the defendant see what was there. Id, at 4 ‘These admissions, the complete loss of any way to reproduce what was on the computer, coupled with specific examples of the type of missing information that would have been included in the destroyed evidence, led the Court to draw “the strongest inferences allowable in favor of the party denied access to potentially relevant evidence.” Id, at 3. Relevant evidence is one criteria in analyzing a spoliation sanction, and relevance may be surmised from the intentional acts of the spoliator. Importance, or materiality, of the destroyed information, is a separate consideration that does not automatically flow from a finding of relevance. ‘The Honorable Sean P, O*Donnell FINDINGS OF FACT AND CONCLUSIONS OF eer eee ate AW --6 ‘Seat, WA 98108 (206}477-1501 wie ewe a ow 10] 12 3 14] 15 16] 17] 18 19) 20| 2 2| 23; 24] 25) 26 To analyze prejudice, the Court must first have some factual basis to outline the materiality or importance of the missing evidence. In Piet 67 the parties unmistakably knew what the missing evidence was: valuation techniques used for comparable properties in a case involving disputed property assessments for plaintiffs" property. Pier 67, 89 Wn.2d at 380. In other words, a specific, defined document directly related to the issue at hand, whose existence was known and corroborated, from which the Court could infer that the missing information contained the would be both relevant and unfavorable to the aggrieved party. Some evidence, beyond an inference of relevance, of the materiality of the destroyed documents would be necessary in analyzing prejudice to the aggrieved party. “A plaintiff must first establish to the satisfaction of the court that the absence of the records hinders his ability 10 establish a prima facie case...” Sweet v, Sisters of Providence in Washington, 895 P.2d 484, 491 (Alaska 1995). In the Anheuser-Busch, Inc. v, Natural Beverage Distributors case cited by plaintiffs, there ‘were known, identifiable documents that the plaintiff withheld and whose existence was material to the defense, “The Natural Beverage documents stored in the warehouse were important to supporting Anheuser's defense.” Anheuser-Busch, Inc. v. Nat. Beverage Distributors, 69 F.3d 337, 354 (9th Cir. 1995). In the Holland America case, the withheld documents (emails to the plaintiffs? office assistant) were known and their contents identified by the assistant who came forward post- trial to accuse the plaintiff of lying. And in the Volcan case, the spoliated evidence was specifically described as notebooks containing details of personal dealings plaintiff had with the defendant during the course of their business relationship (details which were also described as inculpatory), Volcan Grp., Inc. v. T-Mobile USA, Ine., 940 F, Supp. 2d 1327, 1336 (W.D. Wash, 2012), aff'd sub nom, Volcan Grp., Inc. v. Omnipoint Comme'ns, Inc., 552 F. App'x 644 (9th Cir. 2014). The Honorable Sean P. O'Donnell FINDINGS OF FACT AND CONCLUSIONS OF SeTeeae tea ‘Seat, WA 94108 (206)477-1501 moa we pe Oo 10) I 12) 13) 14] 15) 1 13} 19} 20| 21 22 23] 24] 25] 26] To simply adopt a rule that the destroyed evidence could be anything unfavorable, would impermissibly lower the bar in a request for such significant sanctions and make a prejudice analysis meaningless. Homeworks Const., Inc. v Wells, 133 Wn.App. at 899. And while the Pier 67 case discusses the issue generally, a more thorough analysis of whether the Court may infer the specific existence of substantive evidence as a result of spoliation is the case of Walker v. Herke, a Washington Supreme Court case which addressed a missing document in a dispute relating to the sale of cattle, spoliation creates an inference to be considered in weighing the effect of the evidence applicable to the question in dispute. The effect of such spoliation is persuasive rather than probative, and cannot be invoked as substantive proof of any fact essential to appellant's case, certainly not where, as in this case, secondary evidence was obtainable to prove the fact. Walker v. Herke, 20 Wn. 2d 239, 249, 147 P.2d 255, 260 (1944) This Court agrees with the premise that there must be some showing of a nexus between the proposed inference and the information allegedly contained in the lost evidence. This is particularly true in the context of electronically stored information, which can contain a multitude of media and a multitude of circumstances as to how that media may be altered — from the innocuous to the highly probative. To otherwise abandon the requirement that the moving party show relevance and importance of the spoiliated evidence, and to rely solely inference to establish what was in the lost materials, would result in the abandonment of a reasoned prejudice analysis. Culpability of Alleged Spoliator In determining culpability, “courts examine whether the party acted in bad faith or with conscious disregard of the importance of the evidence, or whether there was some innocent ‘The Honorable Sean P. O°Donaelt FINDINGS OF FACT AND CONCLUSIONS OF Senn eee = Seatle, WA 9804 (206477-1501 x oe a aw sw 10) MW 12| 13 14 15) 16| 17 18} 19) 20) 21 22 23 2al 2s| 26] explanation for the destruction.” Henderson, 80 Wn.App. at 609; Homeworks Constr., 133 Wa.App. at 901. If an allegation of willful or bad faith destruction is made, the opposing party may rebut the inference, Pier 67, 89 Wn.2d at 385. ‘The viol mn of a duty to preserve evidence is an important consideration in determining willfulness or bad faith. It is not the only one. So too is whether the offending party acted with intentional, purposeful or deliberate conduct in the destruction of the evidence. And, as noted above, the alleged spoliator must have clear notice of his or her duty to preserve the questioned evidence Finally, negligence, or conduct falling short of bad faith or willfulness, does not support the imposition of spoliation sanctions. Cook, 190 Wn.App. at 463. See also Fed R. Civ, Pro 37(c) and accompanying Advisory Committee Notes. With the foregoing as a backdrop to the legal framework through which this Court will analyze the adduced facts and reach its conclusions, the Court now makes the following Findings of Fact and Conclusions of Law: I. FINDINGS OF FACT ‘The facts outlined in the introduction to this memorandum opinion are incorporated here. i, Defendant Zillow. 1. The evidence does not support a finding that defendant Zillow acted willfully or in bad faith with respect to any evidence allegedly lost due to spoliation. There was no evidence presented that Zillow was in possession of any of the so-called missing storage devices belonging to defendants Beardsley or Samuelson, or that Zillow had knowledge of any of the co-defendants’ alleged deletions, reformatting o copying of files. FINDINGS OF FACT AND CONCLUSIONS OF LAW --9 Wa 98108 (206}477-1801 wio ws wn oo 10| 1 12] 13] 14] 15] 16] 1 18} 19) 20) 21 22) 23) 24| 25| 26| 2. Zillow took early and appropriate steps to notify its employees, including Samuelson and Beardsley, of their obligations to preserve evidence 3. Zillow imaged both Mr. Samuelson’s and Mr. Beardsley’s Zillow-issued devices in this case. Plaintiffs assert that the timing of that imagining shows bad faith on Zillow’s part. The Court disagrees. Zillow may have engaged in dilatory conduct (the Court is not making that finding here), but even if it did, there is insufficient evidence in the record to support a finding that it was a willful decision to deny plaintiffs access to important and material evidence in this case. 4. With respect to other, non-7 related to his Move issued Macbook, Dell, iPad, and iPhone all occurred before Zillow had reasonable notice of the probability of this litigation. ‘The deletions from low devices, deletions undertaken by Mr. Samuelson Mrs. Samuelson’s iPhone also proceeded the litigation and the device was never in Zillow's possession or control. The same goes for the two ‘missing’ thumb-drives and the LaCie hard drive. Nor were these devices known to Zillow or under their control. The fact that Mr. Beardsley, unknown to Zillow, ran a deletion program on his computer does not rise to a finding of willfulness or bad faith on the corporation's part warranting terminating sanctions. 5. In short, the evidence does not support a finding that Zillow acted willfully or in bad faith to withhold evidence from the plaintiffs. It did not perform deletions; it did not hide or lose devices; and it notified its employees of their duty to preserve evidence through a litigation hold issued the same date Move filed its lawsu ii. Defendant Samuelson 1. The Court found Mr. Samuelson to be a credible witness. 2. Asan initial matter, the evidence does not support a finding that defendant Samuelson was under a duty to preserve evidence prior to the filing of this lawsuit on March 17, 2014. 3. Mr, Samuelson had a series of back and forth conversations with Zillow and its executives leading up to his departure from Move in March 2014. As part of those ‘The Honorable Sean P. O°Donnell FINDINGS OF FACT AND CONCLUSIONS OF ea aero Seale, WA SEO (20677-1801 how Sie ew aia u 12| 13 4 15] 16) 7 18] 19) 29] 21 22 23} 24] 25| 26 latter conversations, Mr. Samuelson negotiated an indemnification agreement to be included in his contract. He resigned from Move on March 5, 2015. 4. Neither the negotiations or the indemnification agreement are sufficient to show that Mr. Samuelson had clear notice, or even a reasonable expectation, that litigation was imminent to the point that a duty to preserve evidence attached. 5. Accordingly, at the time Mr. Samuelson attempted to copy the contents of his Move Macbook laptop to the Lacie USB, or resct his Move-issued Apple devices or the so- called bumer’ phone!, Mr. Samuelson did not have clear notice of his obligation to preserve the materials contained on those devices? because he did not have a reasonable expectation that litigation was probable. Even if he did, his efforts to delete material from the Move Macbook were not done in bad faith or with a willful intent to avoid plaintiffs from obtaining evidence, 6. The notice of his duty to preserve evidence attached on March 17, 2014 — the day that Move sued Mr. Samuelson. 7. Moteover, his explanations regarding why he took steps to delete information are not, as plaintifis suggest, incredible. It was uncontested that he had personal information on his Move devices, including personal tax information, family photographs, family medical history and the like. His explanation that he did not want his soon-to-be former employer retaining this information was reasonable. 8. Furthermore, Mr. Samuelson’s testimony regarding the steps he took with respect to copying documents from his Move laptop and then deleting his personal profile from that device did not evidence a deliberate attempt to prevent plaintiffs from obtaining ' The evidence does not support a finding that the two messages produced by Mr. Samuelson on April 28, 2015 from the so-called ‘burner’ phone indicate his bad faith efforts to destroy evidence or that their late production has put plaintiffs at a disadvantage in the presentation of their case, ® The Court finds Mr. Samuelson’s testimony credible regarding the reasons for the Chipsbank USB drive and the ‘Verbatim Store N Go drive to be briefly connected to his Move laptop. Furthermore, his connection to the UDisk 17100 in May 2014 was limited and did not evidence a willful intent or bad faith motive to deprive plaintiffs of evidence, There is insufficient evidence to support a finding that his use of that device resulted in the loss of relevant ‘and important information that would prejudice plaintiff" ease. ‘The Honorable Sean . O*Donnetl FINDINGS OF FACT AND CONCLUSIONS OF Nesorbte Sean 07D = ‘Seat, WA 98108 (@06}477- 1801 aw sown relevant evidence in this matter. He retumed the laptop to plaintiffs on March 4, 20143 9. The evidence recovered from the “burner” iPhone phone and Move issued Apple devices also show that most, if not all, of the salient communications on them have been recovered. In analyzing the potential prejudice to plaintiffs and the presentation of their case, the Court finds due in large part to the vast amounts of recovered data, ffs is diminished. 10. Mr. Samuelson did employ a peculiar procedure to obtain his personal files (obtaining the risk of prejudice to pli a mirror image of the Dell, buying a new hard drive, cloning the Dell to it, and then erasing aspects of the clone but not the original Dell). This peculiarity by itself does not lead to a finding of bad faith or willful effort to conceal evidence. And, as noted elsewhere, most if not all of this information has been recovered in some form or another. 11. Samuelson’s explanation as to his use of the Dell (and his infrequent use of it before leaving Move) was credible and corroborated by the forensic evidence obtained during the hearing, 12. Move ultimately obtained the Dell hard drive, and it remains in Move’s possession. 13, Plaintiffs have also asserted that Mr. Samuelson connected his LaCie hard drive to an unknown or “phantom” computer on five separate occasions, March 5, 7, 10, 12 and 20", 2014. These were the same dates he attached the LaCie to his Zillow computer. For the “phantom” computer scenario to be true, Mr. Samuelson would have had to, ‘Among other things, rapidly connect the LaCie to the Zillow computer and then to the “phantom” computer within minutes if not seconds. 14, The evidence does not support a finding that such a phantom computer existed. Mr. Lloyd-Jones and Mr. Crain, equally qualified and equally credible experts, testified in ° There was some suggestion that a number of files (138) that once resided on the Move macbook could not be found on either the LaCie, the Move Dell or in the copied folder provided to Warren Cree, Mr. Samuelson testified that these files were attachments to emails he had sent. He theorized that Move would have these files preserved on its servers. It is possible that Move would have copies of some of the ‘missing’ files, including personal files. The deletion of these files occurred before March 17, 2014. ‘The Honorable Sean P. O'Donnell FINDINGS OF FACT AND CONCLUSIONS OF Hepersbl San P. O"Dos ‘Seat, WA SHO (@06}477-1501 soa iy a wD So ow 13 14) 15] 16| 17 18) 19] 20} 2 22 23 24] 25| 26| opposition to each other on this issue. The Court finds both scenarios within the realm of the possible, but as this is plaintiffs’ burden, they have failed to show theirs is the more likely. Left with competing plausible scenarios regarding the phantom computers, the Court cannot conclude that the more sinister of the scenario is likely. 15. The data from the LaCie, to the extent any was deleted, remains recoverable in the “For Warren” directory. But, as noted elsewhere, any deletions associated with the LaCie occurred before Mr. Samuelson was under obligation to preserve evidence. 16, Finally, there was suggestion that certain amounts of data from Mr, Samuelson’s Gmail account may have been lost duc to his deletion of the Microsoft user data on his Move Macbook, Mr. Samuelson’s explan: nn regarding the Gmail not being synched to his Microsoft user folder; the data at issue there would not have been lost (and even if it had been, the loss occurred prior to any duty to preserve evidence attaching). 17. In sum, even if the duty to preserve evidence had attached prior to being sued on March 17, 2014, Mr. Samuelson’s efforts to copy documents from the Move issued Dell, his re-setting of the iPhone and iPad and his deletion of information on the Move Macbook laptop did not show the necessary bad faith or willfulness for a finding of spoliation. Nor does the evidence show, post March 17, 2014, that Mr. Samuelson’s conduct resulted in such prejudice that it puts them at a significant disadvantage in the prosecution of their case warranting terminating or other spoliation sanctions. fendant Beardsle 1. Mr. Beardsley’s hands are unclean when it comes his intentional destruction of certain evidence. Plaintiffs have shown that Mr. Beardsley took deliberate steps to hide or destroy evidence after being on notice of his duty to preserve it. The loss of this evidence, specifically meta-data associated with a number of media storage devices, puts plaintiffs at a disadvantage in presenting their case, 2. Analyzing the resulting prejudice is a necessary function of this Court in crafting the appropriate sanction. nN ‘The Honorable Sean P-O°Doanel FINDINGS OF FACT AND CONCLUSIONS OF Hoare Sean. 'De 7 ‘Sele, WA 96108 (206}477-1501 So ey awe wv WW 13 14] 15 16] 17 18 19] 20} 21 22| 23 24] 2s| 26| FINDINGS OF FACT AND CONCLUSIONS OF LAW ‘Seat, WA 98104 As a threshold matter, the Court finds that the prejudice resulting from Mr. Beardsley's conduct is not so great as to warrant entry of terminating sanctions. While his conduct appears egregious (and in many respects is egregious), when examining the details, there is insufficient corroborating evidence to demonstrate the ‘materiality or importance of supposedly lost documents, And, in many instances, the supposedly lost documents are actually reproduced in other media. Evidence of importance and materiality is necessary, especially in the context of a willful or bad faith finding, plaintiffs when devising an appropriate sanction. Plaintiffs simply ask this Court to order for this Court to consider the prejudice to infer that unspecified documents existed and that they were unfavorable to Mr. Beardsley’s defense without any particularity as to how important or how unfavorable. It would be error for the Court to adopt such a broad, and bare, inference. . Nevertheless, with respect to his handling of certain devices and information, Mr. Beardsley’s conduct was willful and in bad faith and is sufficiently prejudicial to Warrant the provision of a jury instruction or instructions related to the lost or missing evidence. . Like Mr. Samuelson, Mr. Beardsley’s duty to preserve evidence for purposes of litigation attached on March 17, 2014 when Moved sued Errol Samuelson. He had numerous other warnings that followed the filing of the lawsuit. Mr. Beardsley had notice through a subpoena issued on June 16, 2014 and the Court’s initial injunction of June 30, 2014 of his preservation duty. He was also aware of a June 27, 2015 order by this Court to produce documents for forensic inspec n bya neutral. . Evidence on the following devices was willfully destroyed by Mr. Beardsley in the face of a clear obligation to preserve: Lost meta-data from the WD hard drive Lost meta-data from the SD 32 device Lost meta-data from the SD 64 device Lost meta-data from the 1700 device v. Lost meta-data from the ISAA device morale Sean P.O*Donaell This Avenue, W817 (206}477-1501 10) n 12] 13 re 15| 16] 17 18} 19] 20| ai 22| 23) 24 25| 26| A.__WD hard drive 1) The evidence shows that Mr. Beardsley copied documents from his Move issued Dell laptop to the WD drive on March 4, 2014. This included Mr. Beardsley’s “Document” folder, containing subfolders titled “Move,” “Outlook,” “Dropbox” and “Hub.” 2) Mr. Beardsley claims he destroyed the Westem Digital hard drive in a pique of anger in September 2014, well after notice of his duty to preserve it. He described the hard

    You might also like