#341 - Pltf's Opposition To Defs' Motion To Dismiss For Spoliation

Case 2:08-cv-01827-JLR Document 341 Filed 03/21/11 Page 1 of 14
5 THE HONORABLE JAMES L. ROBART
9 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
10 AT SEATTLE
11 LONDI K. LINDELL,
No. CV 08-1827 JLR
12 Plaintiff,
PLAINTIFF'S OPPOSITION TO
13 v. DEFENDANTS’ MOTION TO DISMISS
FOR WILLFUL SPOLIATION OF
14 CITY OF MERCER ISLAND, a Washington EVIDENCE
municipal corporation; MERCER ISLAND CITY
15 MANAGER RICHARD CONRAD, in his official
and individual capacities; MERCER ISLAND NOTE FOR MOTION CALENDAR:
16 DEPUTY MAYOR JIM PEARMAN, in his March 25, 2011
official and individual capacities; MERCER
17 ISLAND COUNCILMEMBER ERNEST
JAHNCKE, in his official and individual
18 capacities; MERCER ISLAND FINANCE
DIRECTOR CHARLES CORDER, in his official
19 and individual capacities,
20 Defendants.
21
22
23
24
25
26
PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

28th Floor, Washington Mutual Tower
DISMISS FOR WILLFUL SPOLIATION OF EVIDENCE
1201 Third Avenue
(Cause No. CV 08-1827 JLR) Seattle, Washington 98101
Page i (206) 343-2700
1 I. INTRODUCTION
2 Once again, Defendants misrepresent material facts to this Court hoping to escape the
3 merits of Ms. Lindell’s claims. This time, in an incredibly inflammatory and conclusory motion,
4 Defendants claim that Ms. Lindell destroyed evidence from the “laptop computer by twice
5 secretly ‘wiping’ its hard drive” despite having actually received files from Ms. Lindell’s laptop
6 that were created before March 2010 when Defendants allege Ms. Lindell wiped her drive.
7 Thus, Defendants’ motion is pure fiction, contrary to the evidence, and is not even supported by
8 Defendants’ own purported expert’s declaration. In fact, as detailed in the attached declaration
9 of computer forensic expert, Allison Goodman, the forensic evidence conclusively proves that
10 neither the hard drive nor the free space of the laptop were “wiped” by Ms. Lindell or anyone
11 else. Simply put, no evidence was destroyed, relevant or otherwise.
12 The truth is that Ms. Lindell took all efforts to preserve the data on her computer. She
13 was so diligent in doing so that when she learned it had twice been infected with a virus, she
14 took it to PC Doctor (a computer repair shop) to remove the viruses and ensure that no data was
15 corrupted. Thus, on both March 11, 2010 and on August 21, 2010 – the two dates Defendants
16 baselessly allege Ms. Lindell wiped her hard drive – Ms. Lindell did not even possess her
17 computer. Rather, as the attached invoices clearly show, viruses were removed from the laptop
18 computer in conformity with PC Doctor's standard removal process by using a program called
19 “CCleaner” or “Crap Cleaner.” As implied by its name, “Crap Cleaner” is designed to remove
20 “unused,” temporary internet files from a computer, and PC Doctor did not run the program in
21 any way that would permanently destroy evidence or wipe the hard drive. Nothing cleaned from
22 the temporary internet files (mostly data and images from Ms. Lindell’s internet browsing
23 history) is remotely relevant or responsive. Moreover, because the hard drive was never wiped,
24 all the temporary files that were removed are recoverable.
25 Based on the evidence – which conclusively establishes that Ms. Lindell did not destroy
26 any relevant information from her computer – there is simply no basis to award sanctions of

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1 any kind against Ms. Lindell. Rather, given the substantial misrepresentations and unfounded
2 allegations by Defendants, which maliciously call Ms. Lindell a liar (“[e]vidence conclusively
3 show(s). . . she was lying,” Dkt. 319 at 4) a thief (she “absconded” with the laptop, Id. at 2),
4 and falsely attribute bad faith acts to Ms. Lindell (Lindell engaged in “malfeasance” when she
5 “intentionally destroyed key evidence by wiping” the hard drive, Id. at 1), Defendants should
6 be required to pay all Ms. Lindell's costs and fees associated with this Motion.
7 II. FACTS
A. Ms. Lindell Preserved All Relevant Evidence and Never “Wiped” Her Laptop.
8
Throughout litigation, Ms. Lindell was careful not to delete or destroy any relevant
9
information contained on her computer and did not ask anyone else to delete or destroy
10
information on her behalf. Lindell Decl. The most relevant information in this case – documents
11
and e-mails related to Ms. Lindell’s work at the City – are on the City’s server and in the City’s
12
possession. Id. Indeed, both City Manager Conrad and City Attorney Knight testified that the
13
City began monitoring Ms. Lindell’s computer use prior to her April 2008 termination,
14
including pulling documents from her computer. Lindell Decl., Exhs. D & E. Thus, all work
15
related materials are already in the City’s possession.
16
Since April 2008, Ms. Lindell has not had access to the City’s server or her work e-mail
17
account, and accordingly, any such work documents or e-mails could not have been destroyed
18
by Ms. Lindell. Lindell Decl. Moreover, Ms. Lindell has preserved her e-mails from her
19
personal hotmail account (created in or around May 2008) and did not delete any responsive
20
documents from her laptop. Lindell Decl., Exh. C. Rather, all relevant, responsive information
21
has been produced to Defendants.
22
1. Lindell Was Not In Possession Of Her Laptop When She Allegedly “Wiped” the
23 Hard Drive; PC Doctor Was Removing Viruses Both Times.
Ms. Lindell’s personal laptop computer has been the subject of several motions
24
throughout the course of this litigation. Dkts. 38, 60, 64, 74, 220, 221, 231, 238, 239, 252,
25
26

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1 269.1 Ms. Lindell maintains, as she has always maintained, that the laptop at issue is her
2 property and that it does not belong to the City.2 Lindell Decl. As such, throughout litigation
3 Ms. Lindell and her family have continued to use the laptop as their family computer. Id. Her
4 children completed homework projects on the computer, her husband used the computer for
5 business, and Ms. Lindell used it for a variety of projects, including communicating with her
6 attorneys regarding her case. Id.
7 Sometime in March 2010, after her children downloaded a TV program from the
8 internet, the computer contracted a virus that caused it to stop functioning properly. Lindell
9 Decl. Ms. Lindell’s husband, Bill Hansen, took the computer to PC Doctor, a local computer
10 service and solution center and requested they remove the virus and repair the computer. Id.;
11 Weibling Decl., Exh. A. As invoices from PC Doctor clearly show, Mr. Hansen dropped the
12 computer off with PC Doctor on March 10, requesting “Virus/Spyware removal” with the
13 computer due to be returned four working days later. Id. In August 2010, Ms. Lindell’s laptop
14 computer again contracted a virus, and on August 17, Ms. Lindell personally took the computer
15 back to PC Doctor to have the laptop repaired again. Lindell Decl.; Weibling Decl., Exh. B.
16 Again, the invoice from PC Doctor reflects that the “service requested” was to remove a
17 “virus.” Id. The computer was returned on August 24, 2010. Id.
18
1
Defendants’ motion is replete with misrepresentations about the procedural background surrounding Ms.
19
Lindell’s laptop. Youssef Decl; Goldsworthy Decl. Ms. Lindell did not obstruct Defendants from obtaining
information from the laptop; rather, as discussed further in the declaration of Nazik Youssef Defendants failed to
20
request information from Ms. Lindell’s laptop, only improperly asking for the laptop itself. Id. When Defendants
finally did seek information from the laptop, they refused to adequately allow Ms. Lindell to review any responsive
21 information for privilege and work product prior to production. Ms. Lindell had no objection to an inspection if
privilege and work-product could be protected, and in fact authorized an inspection in August 2010 with those
22 safeguards in place. Youssef Decl., Exh C. Defendants, however, never agreed to allow Plaintiff's counsel to review
data for privilege and work-product prior to production and wrongly insisted that search terms would cull this
23 information, a faulty premise. Defendants to this day are requesting the entire computer, continuing with the tired
argument they made on January 8, 2010 that the documents are not privileged because the computer is "owned by
24 the City." Defendants failure to acknowledge Ms. Lindell's right to protect work product and attorney client
privilege has led to delay and several hearings on the issue, ultimately requiring this Court to order limits to
25 preserve privilege and work-product by giving her counsel the ability to review data and list withheld data in a
privilege log.
2
26 Despite Defendants’ continued attempts to reargue the issue of ownership, this Court has made it abundantly clear
at several hearings that the issue is irrelevant to any discovery issues between the parties. Transcript 11/3 at 4:1-2
(“The laptop has nothing to do with this.”) (Youssef Decl., Exh. E); Transcript 7/1 at 7:1-5. (Youssef Decl., Exh. F)

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1 2. CCleaner, or “Crap Cleaner,” Is Not “Specifically Designed” To Permanently

Delete Documents, but is Designed to “Remove Unused,” Temporary Files.
2
PC Doctor’s standard operating procedure when removing a virus from a computer is to
3
use the CCleaner program to delete the temporary internet files which are automatically stored
4
on the computer. Weibling Decl. It is absolutely false for Defendants to claim that CCleaner is
5
“specifically designed to erase traces of deletion so that deleted data can never be recovered.”
6
Dkt. 319 at 11; Goodman Decl. Nor is it true that CCleaner is designed to eliminate email or
7
any user created documents. Goodman Decl. Rather, as a brief review of the Piriform website
8
makes clear, CCleaner’s main function is to “remove[] unused files from your system -
9
allowing Windows to run faster and freeing up valuable hard disk space.”3 The files that are
10
impacted by the CCleaner program are temporary files created by Internet Explorer, Windows
11
Explorer and general operating system files, most of which ordinary computer users do not
12
even know exist; not user generated files, such as word documents or actual e-mails. Id.
13
As such, PC Doctor routinely uses CCleaner to not only remove viruses but also to
14
increase efficiency of the computers it is asked to maintain. PC Doctor does not obtain
15
customer consent before running the “Crap Cleaner” program because the temporary system
16
files are not files the customer has created or saved intentionally, but are generally just cookies
17
and junk images that are automatically downloaded to the computer when the user visits a web
18
page. Weibling Decl; Goodman Decl. Ms. Lindell did not ask PC Doctor to use the CCleaner
19
program nor did she know that PC Doctor even used such a program when she asked them to
20
remove the viruses. Weibling Decl; Lindell Decl. PC Doctor simply followed its standard
21
procedure and used the program to remove Virus/Spyware, installed AVG and Malwarebytes,
22
Optimize the system, and clean up temp files. Weibling Decl. At no point did PC Doctor ever
23
wipe the hard-drive or free space, or otherwise permanently destroy relevant documents. Id.
24
25
26
3
See http://www.piriform.com/ccleaner/features. (Goldsworthy Decl., Exh. I).

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1 3. Irrefutable Forensic Evidence Proves that the Hard Drive Was Not Wiped.
2 As explained by the technician that actually completed the work on Ms. Lindell’s
3 laptop, Blake Weibling, his standard practice while using the CCleaner program is to “select
4 all” of the options from the “Advanced” menu and then to specifically de-select the options he
5 does not want to run. Weibling Decl at ¶ 10. In this case, Mr. Weibling de-selected the “wipe
6 free space” option on the “Advanced” menu before running the CCleaner program. Id. As he
7 explains, Mr. Weibling never runs the wipe free space option because wiping the free space is
8 incredibly time consuming and completely unnecessary when removing a virus. Id.
9 Ms. Goodman’s forensic inspection confirms there is no evidence that PC Doctor ever
10 ran the wipe free space option or wiped the hard drive. As Ms. Goodman demonstrates, when
11 configuring the CCleaner program, the wipe free space option is populated in the Windows
12 registry as soon as it has been checked, regardless of whether CCleaner is actually run.
13 Goodman Decl. If a user then un-checks the wipe free space option, the Windows registry will
14 then show the wipe free option as “false” again, even when CCleaner has not been run. Id. In
15 other words, the simple task of checking and un-checking a box is documented in the registry
16 regardless of whether the user runs the program.
17 Even Defendants’ purported expert Mr. Muchmore does not go so far as to claim that
18 the hard drive was wiped based on this evidence. In fact, Mr. Muchmore does not even
19 conclude that the wipe free space option on CCleaner was run at all. Only Defendants’ motion
20 makes these unsupported leaps. Indeed, all Mr. Muchmore can bring himself to say is that at
21 some point the “wipe free space” option in the advance menu of the CCleaner program was
22 “selected.” Dkt. 320. That is consistent with what Mr. Weibling and Ms. Goodman say
23 occurred. Thus, Defendants’ assumption that Ms. Lindell “intentionally selected the option on
24 CCleaner to wipe the entire drive free space on the laptop, and then went back after doing so
25 and ‘de-selected’ that option in order to make it appear that she had not wiped the drive free
26 space” is a gross misrepresentation of the facts and frankly absurd. Dkt. 319 at 8.

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1 Moreover, as Ms. Goodman’s forensic analysis shows, it should have been clear from
2 the information obtained by Defendants through Blank Law that the drive free space was not
3 wiped because they received free space files from before March of 2010. Goodman Decl. at ¶
4 22. For example, attached to Ms. Goodman’s declaration is a drive free space file produced to
5 Defendants which was clearly created in August 2009, well before Defendants allege the drive
6 free space was wiped. Id. If the drive free space had been wiped, as Defendants falsely
7 conclude, this document could not exist on the computer. Id. In other words, while writing their
8 motion Defendants were in possession of free space files from Ms. Lindell’s computer that
9 conclusively prove that the drive free space was not wiped. Goodman Decl. Thus, Defendants’
10 allegation that Ms. Lindell destroyed documents is not only unfounded, but is directly
11 contradicted by the forensic evidence.
12 B. No Relevant Evidence Was Destroyed When PC Doctor Removed the Viruses.

Contrary to Defendants’ assertions, nothing cleaned from the temporary files is relevant
13
to this litigation or even unrecoverable. First, generally speaking, temporary internet files are
14
simply copies or images of the websites a computer user visits which allows the web browser
15
to load more quickly when the user visits those sites again. And certainly no user generated
16
documents created by Ms. Lindell or anyone else are located in this space.
17
Moreover, Defendants never requested that Ms. Lindell preserve her internet activity,
18
nor have they ever requested that she produce such information.4 Youssef Decl. Rather,
19
Defendants sent a request for production asking for Ms. Lindell’s entire computer which
20
Defendants knew, at the very least, was disputed property. Youssef Decl. Exh. A. As this Court
21
recognized, attempting to force a party to give up personal property whose ownership is
22
disputed is not proper as a request for production or a motion to compel. Transcript 7/1 at 7:1-
23
5. (Youssef Decl., Exh. F) Defendants cannot credibly claim that this improper request for the
24
25
4
26 Defendants never requested that Ms. Lindell preserve specific types of information at all, and only now attempt to
rely on the preservation letter Ms. Lindell sent Defendants to justify their frivolous motion. Nothing in Plaintiff’s
preservation letter requires either party to preserve internet browsing history.

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1 return of disputed property notified Ms. Lindell that Defendants believed that temporary
2 internet and systems files are relevant to this litigation.
3 Even if Ms. Lindell’s internet activity was relevant – which it is not – because the drive
4 free space has not been wiped, all of that information is recoverable. “Only if the option to
5 wipe the free space of the hard drive is selected would CCleaner ‘permanently’ delete any
6 data.” Goodman Decl. As should be patently clear now, neither Ms. Lindell nor anyone acting
7 at her behest ever wiped the drive free space. Thus, even these irrelevant files from the
8 temporary internet folder of Ms. Lindell’s laptop are recoverable. In fact, as Ms. Goodman has
9 concluded, pursuant to agreed upon search terms, Defendants are actually in possession of
10 some of those very files. Goodman Decl.
11 C. Defendants Received All Responsive Files And Documents From The Laptop.
Defendants’ motion not only falsely states that the computer’s hard-drive was
12
completely wiped, but also that only a “handful of document files from the laptop” were
13
produced. As with most of Defendants’ motion, this is a complete misrepresentation. In fact,
14
Defendants have received over three thousand (3000) documents and files from Ms. Lindell’s
15
laptop computer5 (including files from the drive free space), a spreadsheet listing
16
approximately seven hundred and fifty thousand (750,000) files located on the computer, and
17
the entire Windows registry. Goldsworthy Decl. In other words, Defendants have received
18
everything they requested in their November 15, 2010 letter to Blank Law and Technology and
19
thus are in possession of everything they are entitled to receive pursuant to this Court’s orders.
20
Importantly, Defendants are in possession of the very documents they claim were
21
wiped from the computer. Pursuant to this Court’s ruling protecting privilege, the parties
22
agreed to a forensic inspection of Ms. Lindell’s laptop using agreed upon search terms to locate
23
any responsive documents. Goldsworthy Decl., Exhs. A-D. After Plaintiff reviewed the files
24
and documents retrieved by Blank Law for privilege and work product, approximately 3000
25
5
26 Despite the use of agreed upon search terms, the vast majority of these files are completely irrelevant to any claim
in this case and mostly include Ms. Lindell’s children’s homework, her husband’s business documents, program
files (for example, Apple license agreements) and temporary internet files.

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1 documents and files were produced to Defendants on January 20, 2011, most of them
2 unresponsive and irrelevant to this litigation. Goldsworthy Decl. Those 3000 files included
3 files from the drive free space from before March 11, 2010, the date Defendants falsely claim
4 the drive free space was wiped. Id. Thus, Defendants received files from the drive free space
5 located through agreed upon search terms and simply cannot claim they do not have all the
6 documents they are entitled to.
7 Moreover, Defendants’ suggestion that it was Plaintiff’s delay that caused their
8 incredibly late motion is, yet again, a complete misrepresentation. As stated above, Defendants
9 received approximately 3000 files and documents pursuant to the agreed upon search terms on
10 January 20, 2011. Not until February 17, nearly a month later, did Defendants request Blank
11 Law to provide them with the laptop’s entire Windows registry, a listing of all files
12 (approximately 750,000) found by the Forensic Toolkit (FTK) on the machine, and an analysis
13 of every occurrence of an external storage device being used on the computer. Goldsworthy
14 Decl., Exh. F. Ms. Lindell had absolutely nothing to do with Defendants’ delay. Id. In response
15 to this delayed demand, Jonathan Yeh of Blank law replied to Defense counsel stating, “When
16 nothing further was said about Items (1)-(4) in your letter after our initial work in
17 searching and producing additional data from the laptop, I had assumed that either they
18 were not needed or that the parties had reached some sort of agreement about them.”
19 Goldsworthy Decl., Exh. G. It was not until after 6:00 p.m. on February 28 that Blank Law was
20 able to complete the work Defendants belatedly requested. Goldsworthy Decl., Exh. H.
21 Defendants received everything from Blank Law the next day. Goldsworthy Decl.
22 Thus, Defendants could easily have filed this motion well before March 10, 2011, but
23 instead chose to wait to follow up with Blank Law until nearly a month after the search term
24 generated files and documents had been produced to them. Indeed, it appears that, unsatisfied
25 that there were no “smoking gun” documents on Ms. Lindell’s computer after receiving these
26 some 3000 documents, Defendants tried to dig up anything they could on Ms. Lindell by using

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1 a forensic exam to fabricate a story that Ms. Lindell destroyed evidence. Defendants never
2 communicated with Plaintiff regarding any concerns that files might have been deleted.
3 Goldsworthy Decl. Had they done so, they would have learned the facts and could have
4 avoided wasting both Ms. Lindell’s and this Court’s valuable time two weeks before trial.
5 III. LEGAL ANALYSIS

A. Ms. Lindell Has Not Destroyed Evidence And No Sanctions Are Warranted.
6
As the foregoing facts demonstrate, there is absolutely no basis to sanction Ms. Lindell,
7
let alone dismiss her case, as she did not engage in any spoliation of evidence. A district court
8
may only dismiss a party’s claims as a sanction if it makes a finding of “willfulness, fault, or
9
bad faith.” Leon v. IDX Systems Corp., 464 F.3d 951, 958 (2006). Before imposing such a
10
harsh penalty, the court must consider “(1) the public’s interest in expeditious resolution of
11
litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party
12
seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5)
13
the availability of less drastic sanctions.” Id.
14
Here, there is absolutely no basis to dismiss any of Ms. Lindell’s claims. Ms. Lindell
15
did not wipe the hard drive or the free space, did not delete any documents, and did not destroy
16
any evidence whatsoever. The only thing she did was take her personal laptop computer to a
17
computer repair shop in order to have a virus removed. Based on these facts, Defendants are
18
asking this Court to presume Ms. Lindell destroyed documents when the evidence proves
19
otherwise. Not only has Ms. Lindell consistently acted in good faith, but she simply did not
20
engage in spoliation of any kind.
21
Defendants suffered no prejudice. The computer was never wiped and no evidence has
22
been destroyed. Defendants have received everything they requested from the forensic
23
inspections, including files from the free space from before March 2010. As already noted
24
above, Defendants received over 3000 documents and files from the laptop computer,
25
including temporary internet files carved from the drive free space that were responsive to the
26
agreed upon search terms. Defendants received everything they requested in their November

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1 15 letter to Blank Law subject to the Court's Order allowing review for privilege, including the
2 very files they are now erroneously claiming were destroyed.6
3 Moreover, as the IDX court noted, there is a strong public policy favoring the
4 disposition of cases on the merits. It is now two weeks before trial and Defendants are still
5 using every conceivable tactic to avoid Ms. Lindell having her claims decided on the merits.
6 The witch-hunt must stop. Defendants have received a complete forensic examination of
7 Lindell’s personal laptop computer and been provided all the evidence they have asked for.
8 Lindell has the right to have the substantive issues of her claims decided by a jury.
9 In light of these facts, there can be no serious contention that Ms. Lindell acted
10 willfully or in bad faith, or otherwise intentionally destroyed evidence. In fact, the forensic
11 evidence is exactly the opposite. All relevant evidence has been preserved and Defendants are
12 in possession of it. There is simply no basis to dismiss Ms. Lindell’s claims.
13 B. Because No Relevant Evidence Was Destroyed, there Is No Basis To Sanction Ms.

Lindell At All.
14
Lesser sanctions are also unjustified given that absolutely no evidence was destroyed.
15
Moreover, as the record makes clear, there was no intent to destroy evidence. Ms. Lindell’s
16
internet browsing history was not responsive to any discovery requests made by Defendant and
17
no reasonable person would believe such information was potentially relevant in this case.
18
Youssef Decl. The Ninth Circuit has concluded that imposition of sanctions for the destruction
19
of documents is only appropriate where relevant evidence is actually destroyed and the party
20
was on notice that the evidence was potentially relevant. Akiona v. U.S., 938 F.2d 158, 161 (9th
21
Cir. 1991). In explaining why sanctions were not appropriate, the Court in Akiona stated:
22 [a] party should only be penalized for destroying documents if it was wrong to
do so, and that requires at a minimum, some notice that the documents are
23 potentially relevant… Here, the plaintiffs have not shown any bad faith in the
destruction of the records, nor even that the government was on notice that the
24 records had potential relevance to the litigation. Nothing in the record indicates
25
6
26 As discussed in Dkts. 221, 239, 252, Plaintiff respectfully maintains that Defendants failed to properly request a
forensic exam. Her opposition to agreeing to one was justified, especially given Defendants steadfast refusal to
adequately allow her to protect privilege and work-product materials.

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1 that the government destroyed the grenade records with the intent of covering up
information.
2
Id. As already noted above, Ms. Lindell did not destroy any evidence and thus did not
3
engage in spoliation. Ms. Lindell was never put on notice that her internet browsing history
4
was potentially relevant, which it is not. And even if it were, Defendants are not prejudiced by
5
the deletion of temporary files because the drive free space contains everything that would
6
have been cleaned from those files and Defendants’ received that information when Blank Law
7
ran the agreed upon search terms and produced documents from the drive free space.
8
Defendants have everything they requested from Blank Law.
9
As such, there is simply no basis to sanction Ms. Lindell by dismissing any of her
10
claims, excluding any evidence, or even providing a jury instruction on spoliation. These
11
measures would only be potentially appropriate if there were actual spoliation of evidence.
12
Here there was not. Defendants’ request for the imposition of sanctions in any form should be
13
completely denied.
14
C. Defendants Should Pay Ms. Lindell's Costs and Fees Associated with this Motion.
15 Rather than communicate their concerns to Plaintiff, Defendants filed this motion as a
16 last gasp effort to avoid the merits of Ms. Lindell’s claims. Had Defendants voiced their
17 concerns before engaging in motion practice they would have learned that Ms. Lindell was not
18 in possession of the laptop on the relevant dates, that it had been taken in to have a virus
19 removed, that the hard drive and the drive free space had not been wiped, and that Defendants
20 were in possession of drive free space files from before March 10, 2010.
21 Instead, Defendants used Mr. Muchmore’s report to try and dismiss Ms. Lindell’s entire
22 case, engaging in leaps of logic in order to justify their position. Defendants’ motion has forced
23 Ms. Lindell to pay to retain a computer forensics expert at incredibly short notice, to pay for an
24 entire forensics exam, and to pay fees for responding to this motion, all when she should be
25 preparing for trial. This should not have been necessary and could have easily been avoided
26 had Defendants been willing to engage with Plaintiff’s counsel and discuss the matter.

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1 As such, Ms. Lindell requests that this Court award costs and fees and require
2 Defendants to bear the total expense of their frivolous and inflammatory motion.
3 IV. CONCLUSION
Ms. Lindell has never destroyed evidence relevant to this litigation, nor would she ever
4
do so. Without ever bothering to discuss the matter with Plaintiff, Defendants took an
5
innocuous report by Mr. Muchmore and spun the actual evidence until it no longer resembled
6
reality. As should now be clear to Defendants, they are actually in possession of the very
7
information they are claiming was destroyed. Neither Ms. Lindell, nor PC Doctor, nor anyone
8
wiped the hard drive of the laptop computer or did anything which would permanently destroy
9
evidence from that machine. Defendants’ motion, filed three weeks before trial, is a shot in the
10
dark intended to divert attention away from Ms. Lindell’s meritorious claims. Defendants’
11
motion should be denied in its entirety.
12
13
DATED this 21st day of March, 2011.
14
15 THE BLANKENSHIP LAW FIRM, P.S.
16
17
By: /s/ Scott C. G. Blankenship
18
Scott C. G. Blankenship, WSBA No. 21431
Nazik S. H. Youssef, WSBA No. 39762
19 Rick Goldsworthy, WSBA No. 40684
The Blankenship Law Firm, P.S.
20 1201 Third Avenue, Suite 2880
Seattle, WA 98101
21
Telephone: (206) 343-2700
22
Fax: (206) 343-2704
Email: sblankenship@blankenshiplawfirm.com
23 nyoussef@blankenshiplawfirm.com
rgoldsworthy@blankenshiplawfirm.com
24 Attorneys for Plaintiff
25
26

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1 DECLARATION OF SERVICE
2
The undersigned hereby declares under penalty of perjury under the laws of the State of
3
Washington that, on the below date, I mailed or caused delivery and/or electronically filed a
4
true copy of this document, which will send notification of such filing, to the following
5
persons:
6
Stephanie R. Alexander, Esq.
7 Suzanne K. Michael, Esq.
Thomas P. Holt, Esq.
8 Michael & Alexander, PLLC
One Convention Place
9 701 Pike Street, Suite 1150
Seattle, WA 98101
10 Telephone: (206) 442-9696
Fax: (206) 442-9699
11 Email: stephanie@michaelandalexander.com
suzanne@michaelandalexander.com
12 thomas@michaelandalexander.com
13 Attorneys for Defendants
14
15 DATED this 21st day of March, 2011, at Seattle, Washington.
16
17
/s/ Scott C.G. Blankenship
18
Scott C. G. Blankenship, WSBA No. 21431
The Blankenship Law Firm, P.S.
19 1201 Third Avenue, Suite 2880
Seattle, WA 98101
20 Telephone: (206) 343-2700
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#341 - Pltf's Opposition To Defs' Motion To Dismiss For Spoliation

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Case 2:08-cv-01827-JLR Document 341 Filed 03/21/11 Page 1 of 14

5 THE HONORABLE JAMES L. ROBART

9 UNITED STATES DISTRICT COURT

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

11 else. Simply put, no evidence was destroyed, relevant or otherwise.

24 all the temporary files that were removed are recoverable.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

6 attorneys regarding her case. Id.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

1 2. CCleaner, or “Crap Cleaner,” Is Not “Specifically Designed” To Permanently

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

16 regardless of whether the user runs the program.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

11 contradicted by the forensic evidence.

12 B. No Relevant Evidence Was Destroyed When PC Doctor Removed the Viruses.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

2 internet and systems files are relevant to this litigation.

10 some of those very files. Goodman Decl.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

6 documents they are entitled to.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

5 III. LEGAL ANALYSIS

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

2 very files they are now erroneously claiming were destroyed.6

12 in possession of it. There is simply no basis to dismiss Ms. Lindell’s claims.

13 B. Because No Relevant Evidence Was Destroyed, there Is No Basis To Sanction Ms.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

15 THE BLANKENSHIP LAW FIRM, P.S.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

13 Attorneys for Defendants

15 DATED this 21st day of March, 2011, at Seattle, Washington.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO THE BLANKENSHIP LAW FIRM, P.S.

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