Crane on Law by James Crane

In Benton v. Dlorah, Inc. (D. Kan. Oct. 30, 2007), the plaintiff claimed gender discrimination by her university employer. It became known during discovery that the plaintiff had used her personal computer to communicate with students and deleted hundreds of relevant emails. Although the communication and destruction of emails occurred in good faith and prior to contemplation of a lawsuit, the university sought production of the hard drive to recover the deleted emails.

The Benton court concluded that plaintiff should produce the hard drive for a forensic inspection limited to the deleted email. The court reasoned that even though the emails were deleted, they were still in her possession, custody, or control, and retrievable. The court ordered plaintiff to pay $1000 in sanctions to reimburse the university, which had to seek production twice, but denied additional sanctions based on spoliation because there was likely no duty to preserve the emails at the time they were deleted.

In Benton, there was one hard drive at issue. For the corporation, the problem of deleted emails on office desktops, personal pcs, and various rogue formats like online storage and flash drives, is multiplied by the thousands. Altep has been very active in assisting our corporate partners to account for their universe of data by providing a variety of services including document retention program consulting and forensic collections and examinations.