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Mercer Law Review

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In a recent case,Gutman v. Klein, the court ordered the defendant to turn over his laptop so that it could be copied by the plaintiff’s lawyer and an expert. When the lawyer and the expert arrived at the appointed time, there was a two-hour delay. When they finally got the laptop, they found that it was hot to the touch and was missing a screw from the hard-drive plate, which made them suspicious.

As a result, the court ordered its own expert to examine the laptop.The court’s expert found that numerous files had been deleted and were unrecoverable, and also that there were numerous modifications in documents that were on the laptop. Accordingly, the judge entered a default judgment against that defendant for spoliation of evidence and ordered that attorney’s fees be given by the defendant to the plaintiff for the time involved. One of the things that the judge said was, “It is impossible to know what [plaintiffs] would have found if [defendants] and [their] counsel had complied with their discovery obligations.”


Ethics and Professionalism in the Digital Age A Symposium of the Mercer Law Review November 6, 2008, Dinner Speech.



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