Use of 'Evidence Eliminator' Software Results in Finding of Fault

A federal magistrate judge in Illinois has dismissed with prejudice a plaintiff's patent infringement suit, concluding that the plaintiff's use of computer software called "Evidence Eliminator" to delete files on the eve of a scheduled discovery inspection indicated a blatant disregard for the litigation process. Kucala Enterprises Ltd. v. Auto Wax Co., N.D. Ill., No. 02 C 1403, 5/23/03.

The plaintiff, Kucala Enterprises Ltd., and the defendant, Auto Wax Co., were manufacturers and distributors of car detailing clay, and were involved in a patent suit.  During the court of discovery, the court granted Auto Wax's request to inspect Kucala's computer data in search of evidence relevant to the infringement claim. When the inspection was conducted, it was discovered that Kucala had during the previous night used Evidence Eliminator to delete 14,000 files.

Even though there was no clear indication that relevant evidence was among the destroyed files, the court emphasized the apparent intent on the part of the plaintiff to destroy evidence. The court handed down a finding of fault and orderered the plaintiff  to pay the opposing party's litigation costs from the date that the program was used.

To read the report and recommendation of Judge ARLANDER KEYS click here.

To read the docket on this case (as of 02/02/04) click here.

More details on this case will appear in the July 2003 issue of Digital Discovery & e-Evidence. This article is provided by Pike & Fisher, Inc.

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