3rd Party's Deletion of Computer Files Referred to US Attorney for Possible Criminal Contempt

Penalties for the spoliation of ESI in a civil case has just taken on a new dimension with the recent decision by a Court to refer a 3rd party's conduct to the United States Attorney for possible criminal contempt proceedings. SonoMedica, Inc. v. Mohler, 2009 U.S. Dist. LEXIS 65714 (E.D. Va. July 28, 2009).  In this wrongful conveying of medical technology case, two individual's computers were subpoenaed for examination and the Court ordered the parties to turn over their home computer "without it being touched except to turn it off."  A forensic expert discovered that before turning over the computer "22,603 files/folders had  been affected and that 556 were deleted manually." This fact coupled with failing to tell the truth during a deposition and failure to comply with a subpoena duces tecum led to the Court's decision to refer the case for criminal proceedings and to impose $108,212.15 in fees and costs against the third parties.