From Kroll OnTrack's "Recent E-Discovery Decisions" (March 2010):
Mintel Int’l Group, Ltd. v. Neergheen, 2010 WL 145786 (N.D.Ill. Jan. 12, 2010). In this employment litigation, the plaintiff sought sanctions up to and including default judgment based on the defendant’s alleged spoliation. The plaintiff argued that the defendant failed to preserve the hard drive of a company-issued laptop by using programs on the computer to destroy metadata and overwrite files. The defendant, whose use of the computer consisted of turning on the computer, accessing the Internet and allowing an automated defragmentation program to run, claimed his actions were not prohibited and did not result in the destruction of relevant evidence. Relying on expert testimony, the court found that any programs on the laptop that would have destroyed metadata, such as antivirus software, were not user initiated. The court held that the defendant’s destruction of any evidence was unintentional, resulting from typical computer use “rather than a pattern that is easily recognized by forensic experts as spoliation.” (Emphasis in original.) Thus, the court found sanctions were not warranted and denied the plaintiff’s motion.