Appellate Court Affirms Dismissal in Light of Plaintiff's Use of Four Wiping Programs on Home PC

In Peal v. Rizzo, et. al. [pdf], Nos. 1-09-2460 & 1-09-3000 (Cons.) (Ill. Ct, App. Jul. 30, 2010), Justice Lavin affirmed the trial court’s dismissal of the plaintiff’s complaint in light of the plaintiff’s intentional “wiping” of evidence on his personal computer.

The plaintiff sued his employer for defamation and wage allegations based on his employment with the defendants from 2000 to 2006. The defendants’ moved to dismiss arguing the plaintiff’s claims were barred by the statute of limitations and presented several hard copy documents purportedly authored by the plaintiff.  The Plaintiff denied authorship of the documents and the court denied the dismissal.  The defendants followed up with a letter requesting the plaintiff preserve all potentially relevant electronically stored information (ESI). In discovery, the plaintiff stonewalled defendants’ request for ESI resulting in the defendants’ request for a mirror image of the plaintiff’s hard drive. The defendants ultimately filed, and the trial court granted, a motion to compel inspection of the plaintiff’s computer. After an examination of the plaintiff’s computer, the defendants’ expert testified that the plaintiff had used four separate wiping programs to permanently delete data from the hard drive, including one the day before the court’ ordered inspection. The appellate court agreed that the plaintiff’s explanation was a complete fabrication.


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