Lost Files: Court Cases Compromised by Hard Drive Erasures

In today's virtual world, more and more often, court cases hinge on computer forensic evidence. Cases are won or lost based on evidence recovered from computers every day and this, in turn, has given rise to a new method of file shredding called spoliation of evidence. Desperate to destroy damning records, businesses and individuals under indictment are using various methods to purge hard drive evidence, often claiming later that the files were deleted during routine maintenance. Given the sophistication of computer forensics, this backfires more often than not, resulting in both recovery of the evidence and new charges.

One inexplicable incidence is the controversy surrounding the former head of the Environmental Protection Agency, Carol Browner, who is rumored to be under consideration by President Obama for the post of “energy czar.” On her last day at the EPA in 2001, Browner directed a computer technician to wipe her files clean, even though U.S. District Judge Royce Lamberth had issued an injunction against that very act. Browner, a savvy lawyer with a stellar career track record, played dumb, claiming she had no knowledge of the order. She further stated that there were no work files on her office computer and that she was removing video games she had downloaded for her son. Three other top EPA officials also wiped their hard drives clean in anticipation of the new administration. Just to be thorough, all backup email files were deleted and overwritten. In a mystifying judgment following a two-year court battle, Judge Lamberth declared the EPA (the agency that all the culprits no longer worked for) in contempt of court and forced the agency to pay all court and legal fees, but chose not to levy punishment against the individuals responsible.

Another interesting case of hard drive misconduct is the convoluted case brought by Hawaiian Airlines against Mesa Air Group and its chief financial officer, Peter Murnane. Mesa and Murnane were accused of using confidential business information obtained, possibly by fraud, from Hawaiian Airlines. The information was received when Mesa inquired about purchasing Hawaiian, and after the deal fell through, Hawaiian alleged that Mesa used the financial information about routes, marketing plans and financial projections to start up its new business venture, Go! Airlines. Before handing over his files to the court as evidence, Murnane claimed he accidentally deleted all the data contained on two separate laptops. His lawyers argued that he was only erasing his extensive collection of porn. After an extended court battle, Mesa agreed to pay Hawaiian $52.5 million in damages.

Spoliation of evidence is becoming all too common in the corporate espionage game, but few perpetrators are able to pull it off successfully. Even those who manage to permanently erase data often lose the case and wind up slapped with contempt, or worse. If computer forensics specialists cannot recover the evidence itself, they can almost always determine whether files were erased. The safest course of action is never to write damning evidence to an internal hard drive in the first place.

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