Case 2:12-cv-01247-JCJ Document 159 Filed 04/03/14 Page 1 of 32
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`:
`FIRST SENIOR FINANCIAL GROUP
`LLC, PHILLIP J. CANNELLA, III :
`AND JOANN SMALL,
`Plaintiffs,
`
`::
`
`v.
`“WATCHDOG,” AND JOHN DOE
`DEFENDANTS 1-9,
`
`:
`:
`:
`:
`:
`
`CIVIL ACTION
`NO. 12-cv-1247
`
`::
`
`:
`Defendants.
`MEMORANDUM AND ORDER
`3, 2014
` APRIL
`JOYNER, J.
`Before the Court are Plaintiff’s Motion for Sanctions Based
`on Defendant Watchdog’s Spoliation of Evidence (Doc. No. 134) and
`Defendant Watchdog’s Response in Opposition thereto (Doc. No.
`138); Plaintiffs’ (Doc. No. 153) and Defendant Watchdog’s (Doc.
`No. 154) Supplemental Briefs; as well as Defendant’s Response to
`Plaintiffs’ Supplemental Brief (Doc. No. 158). For the following
`reasons, it is hereby ORDERED that the Motion for Sanctions is
`GRANTED in part and DENIED in part. An Order follows.
`II. BACKGROUND
`Defendant Krista Brennan (“Brennan”) is the creator of
`websites, including truthaboutcannella.com and
`truthaboutcannella.net, which contain information portraying the
`business and ethical practices of Plaintiffs First Senior
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`Financial Group LLC, Phillip J. Cannella III, and Joann Small in
`a severely negative light. Brennan, or “Watchdog” as she refers
`to herself on these websites, insists that the information on her
`sites is true. Plaintiffs, however, argue that it is disparaging
`and defamatory.
`Brennan’s educational background consists of bachelor’s
`degrees in communication studies and business, a master’s degree
`in organizational and industrial psychology, and significant
`credits toward a master of science in information science
`focusing on the management of information technology. (Tr. 155-
`6). She has held jobs for which she acquired domain names for
`clients and designed websites for them. (Tr. 157). Among other
`positions she has held, Brennan worked for 4 years as the
`Director of Technology for the Vanguard Charitable Endowment
`Program, and worked as a Senior Executive at Stellar Financial,
`Inc., where she was responsible for management of the company’s
`financial software product, software development, and technology
`operations, among other things. (Pl. Ex. L, Resume of Krista
`Cantrell Brennan). Although she knows how to install most kinds
`of software, Brennan asserts that she does not know how to
`install an operating system on a computer. (Tr. 156). Brennan
`once applied for a position as Chief Operating Officer with
`Plaintiff First Senior Financial Group prior to the commencement
`of litigation, but was not given an offer of employment. (Tr.
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`157-8, 160.) At present, Brennan has a diagnosis of an advanced
`form of secondary progressive multiple sclerosis (“MS”) with
`associated loss of sensory ability and mobility, which impedes
`her ability to walk, read, or type; she also suffers from
`nystagmus, which makes it difficult for her to read or use a
`computer. (Tr. 166-67).
`In March 2012, Plaintiffs commenced suit in this Court
`alleging defamation, tortious interference with business
`relationships, civil conspiracy, and violations of the Lanham
`Act. See (First Amended Complaint, Doc. No. 9). In August 2012,
`the Court granted Plaintiff’s Motion for Alternative Service,
`allowing service by e-mail upon Defendant Watchdog. (Order of
`August 29, 2012, Doc. No. 17). Default Judgment for failure to
`appear, plead, or otherwise defend the action was entered against
`Watchdog in November 2012. (Doc. No. 56). Brennan maintains that
`she did not learn of the lawsuit until December 2012. (Def. Resp.
`Ex. A ¶ 3).
`In February 2013, Brennan first appeared in the present
`action by filing a Motion to Vacate the Default Judgment that had
`been entered against her. (Doc. No. 82). The Court scheduled an
`evidentiary hearing to determine whether Brennan had received
`notice of the action and whether service had been effectuated by
`e-mail. (Doc. No. 89). On June 13, 2013, the Court ordered the
`Defendant to:
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`[I]dentify any and all electronic
`devices from which she accessed her email
`accounts truthaboutcannella@yahoo.com and
`watchdog@truthaboutcannella.net and any
`documents or records related to the website
`truthaboutcannella.net. Defendant Watchdog
`shall then submit these devices and computers
`for a forensic examination. Defendant
`Watchdog may select the expert used for the
`forensic examination, and the Plaintiffs
`shall pay for the forensic examination. (Doc.
`No. 97 ¶ 1).
`
`On June 25, Brennan identified the computer of her mother
`Rose Ann Cantrell (the “target computer”) to be the only readily-
`identifiable and accessible computer from which she accessed
`these email accounts. (Defendant Watchdog’s Identification of
`1
`Computers, Pl. Ex. D). Plaintiffs’ counsel did not respond to
`Brennan’s identification of computers at that time. (Doc. No.
`112-1 at ¶¶ 13-15).
`The target computer at Ms. Cantrell’s residence, 160
`Whispering Oaks Drive in West Chester, PA, was always located in
`the kitchen area. (Tr. 31, 70, 153). Ms. Cantrell used the target
`computer on a daily basis to check her bank statements. (Tr. 35,
`70, 154). While living with her mother, Brennan had frequent and
`easy access to the target computer as well. (Tr. 154). At the
`time, she lived on the ground floor of the house, the same floor
`
` Brennan also identified several other computers, including computers
`1
`owned by Immaculata University, a computer she sold at a yard sale in April
`2012, computers belonging to personal friends, a laptop she borrowed from a
`man in Texas, a computer belonging to Steve Watts in Texas, a computer
`belonging to stranger in Panera Bread, and publicly-available computers at a
`K-Mart store. (Pl. Ex. D). None of these are accessible at present.
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`where the computer was located. Id. On two occasions with unknown
`dates, Ms. Cantrell asked individual contractors to make repairs
`to her computer; she also asked her son-in-law, David Borda, to
`help her access her email at times. (Tr. 41-44). Brennan was not
`always at Ms. Cantrell’s house while she was living there; she
`took three trips away of approximately 4-6 weeks, including in
`the summer of 2012 and the winter of 2012-2013. (Tr. 185).
`On June 28, 2013, Brennan moved out of her mother’s house in
`West Chester and flew to Texas. (Tr. 188; Def. Ex. A-2). She did
`not alert her counsel to the fact that she was leaving
`Pennsylvania. (Tr. 176). Two Facebook posts on June 28 and 29
`indicated her location as Houston, Texas. (Pl. Ex. 3,4).
`On July 1, Plaintiff’s newly-appointed counsel contacted
`Brennan’s counsel to discuss the status of the forensic
`examination, and Brennan’s counsel reminded him of the previous
`identification of computers. (Doc. No. 112-1 at ¶ 15-16).
`On July 3, 2013, counsel for the parties conducted a
`telephone conference outside of the Court’s presence. Counsel for
`Brennan, Mr. Cohen, suggested the retention of IT Acceleration
`(“ITA”), a local IT firm, to complete the forensic examination.
`(Affidavit of Sidney S. Liebesman, Pl. Ex. F at ¶ 5). Brennan’s
`counsel also suggested that a device called “EZ Imager” be used.
`Id. ¶ 6; Tr. 175. This device could be used by sending a USB
`drive with imaging software to the house of Ms. Cantrell, where
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`it could be connected to the target computer, directed to run the
`imaging software, and then returned to ITA. (Tr. 83-86, 112-113,
`186-7). While counsel for Plaintiffs affirms that Brennan’s
`counsel suggested that EZ Imager be used by Brennan without Ms.
`Cantrell’s knowledge, (Liebesman Aff. ¶ 6), Brennan testified
`that she had understood that an ITA employee would use the device
`(Tr. 175-76). Brennan preferred the EZ Imager method of
`submitting to forensic examination because Ms. Cantrell
`vehemently opposed the release of her computer to the custody of
`forensic examiners. (Tr. 187). Counsel for Plaintiffs strongly
`opposed the use of EZ Imager, citing concerns for Ms. Cantrell’s
`privacy interests if the exam were completed without her
`knowledge and a desire to observe strict compliance with the
`Court order requiring that the target computer itself be produced
`to a forensic examiner. (Liebesman Aff. ¶ 7). In the expert
`opinion of Gary Hunt, a Forensic Analyst at ITA, the use of EZ
`Imager is a typical, authenticated practice which is forensically
`equivalent to having a technician examine a hard drive in person.
`(Tr. 86, 113).
`On July 7, 2013, Ms. Cantrell “checked in” on Facebook at a
`Starbucks; her location was posted as Katy, Texas. (Def. Ex. A-
`5).
`
`In early August 2013, Ms. Cantrell was hospitalized after
`suffering a heart attack. (Def. Ex. E). When Plaintiffs sought to
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`subpoena Ms. Cantrell to produce the target computer (Doc. No.
`107), Brennan objected and requested that the Court vacate its
`June 13, 2013 Order. See (Doc. No. 112). On August 6, the Court
`ordered that Rose Ann Cantrell’s computer be produced for
`forensic examination. (Doc. No. 115). When the computer was still
`not delivered, the Court verbally reiterated its order in an
`August 20 conference call with the parties. (Doc. No. 119). The
`computer was produced to ITA the next day by David Borda, Ms.
`Cantrell’s son-in-law. (Tr. 69-70). It was the results of this
`forensic examination which led Plaintiffs to file the present
`Motion for Sanctions Based Upon Spoliation of Evidence.
`Gary Hunt, the ITA Forensic Analyst, obtained a mirror image
`of the target computer, returned the target computer to Ms.
`Cantrell, and then performed a forensic examination of the mirror
`image. (Declaration of Gary Hunt, Pl. Ex. K at ¶ 2-3). He found
`no user-created documents on the computer. Id. ¶ 8. He also
`discovered that on July 7, 2013, Windows 7 had been reinstalled
`on the computer. Id. ¶ 9. The only current user profile on the
`target computer, “roseanncantrell,” was created at the same time.
`Id. ¶ 10. It was not possible to determine who had completed the
`reinstallation, nor who was logged on to the computer prior to
`the reinstallation. Id. ¶ 11; (Tr. 97-98, 120). Mr. Hunt also
`concluded that two different types of data-wiping software,
`Tracks Eraser Pro and CCleaner, had been installed and used on
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`the target computer. (Hunt Decl. ¶ 12). Though it is not possible
`to determine when exactly these two types of software were used,
`they were used prior to July 7, 2013 by the user profile “Rose”
`which no longer resides on the computer. Id. ¶ 12-13, 16. It was
`also not possible for Mr. Hunt to determine who had employed
`these two types of software, and what, if any, data was deleted.
`In addition to their data-wiping capabilities, Tracks Eraser Pro
`and CCleaner have functions related to system optimization. Id.
`¶ 14. While CCleaner is sometimes pre-installed on computers,
`Tracks Eraser Pro must typically be installed on a computer after
`it is purchased. (Tr. 93). Mr. Hunt testified that the use of
`both programs on one computer is “fairly rare” in his experience.
`(Tr. 131-32).
`Lastly, Mr. Hunt conducted searches for certain keywords
`provided to him by counsel for the parties. Nearly all of the
`Plaintiffs’ search terms hit on words in the target computer.
`(Pl. Ex. I). The search term hits were either system-related
`files or fragments from the unallocated space, which is disk
`space not being used by active files which can be over-written by
`the computer. (Hunt Decl. ¶ 8). Files or fragments are moved to a
`computer’s unallocated space when files are deleted. (Tr. 126).
`Additionally, fragments may end up in the unallocated space as a
`result of clearing one’s browser history or having temporary
`files running on the computer. Id. Mr. Hunt advised counsel that,
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`at times, some keyword searches may result in “false positive”
`hits. (Tr. 117-118). For example, a positive hit for the word
`“complaint” may not refer to a complaint in a legal action. (Tr.
`118). However, uncommon words such as “metaphysicalgrrl” and
`“Watchdog” are less likely to produce false positives. (Tr. 137).
`On January 27, 2014, Plaintiffs withdrew their opposition to
`Brennan’s Motion to Vacate Default Judgment. See (Doc. No. 146).
`The Court subsequently vacated the default. (Doc. No 147).
`The Court held an evidentiary hearing on Plaintiff’s Motion
`for Sanctions Based on Defendant Watchdog’s Spoliation of
`Evidence on February 18, 2014. The Court heard testimony from
`Rose Ann Cantrell, David Borda, Krista Brennan, and Gary Hunt.
`III. ANALYSIS
`Spoliation usually refers to the alteration or destruction
`of evidence. Bull v. United Parcel Serv., 665 F.3d 68, 73 (3d
`Cir. 2012). However, “the trier of fact generally may receive the
`fact of the document’s nonproduction or destruction as evidence
`that the party that has prevented production did so out of the
`well-founded fear that the contents would harm him.” Id. (citing
`Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3d Cir.
`1983)). Thus, because a party’s failure to produce a document can
`have the same practical effect as destroying it, failure to
`produce evidence can, in certain circumstances, be characterized
`as spoliation. Id.
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`Spoliation occurs when (a) the evidence was in the party’s
`control, (b) the evidence is relevant to the claims or defenses
`in the case, (c) there has been actual suppression or witholding
`of evidence, and (d) the duty to preserve the evidence was
`reasonably foreseeable to the party. Id. (citing Brewer v. Quaker
`State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995)). The party
`asserting that spoliation of evidence has taken place carries the
`burden of proof. Stream Cos., Inc. v. Windward Adver., 2013 WL
`376121 at *2 (E.D. Pa. 2013); Tabon v. University of Pennsylvania
`Health System, 10-cv-2781, 2012 WL 2953216 at *2 (E.D. Pa. 2012).
`The Court concludes that these factors are met in the
`present case, and imposes appropriate sanctions.
`A.
`Control
`To succeed on its motion, Plaintiffs must prove that Brennan
`had control over the target computer. Whether the alleged
`spoliator’s control is exclusive is considered in the spoliation
`analysis. See, e.g., Patel v. Havana Bar, Rest. & Catering, 2011
`WL 6029983 at *9 (E.D. Pa. Dec. 5, 2011); Kvitka v. Puffin Co.,
`LLC, 2009 WL 385582 at *7 (M.D. Pa. Feb. 13, 2009). However,
`exclusivity is not necessary for a finding of control. Indeed,
`courts have found that control may exist even if a third party
`physically possesses the evidence at issue. See, e.g., Klett v.
`Green, 3:10-cv-02091, 2012 WL 2476368 (D. N.J. June 27, 2012);
`Haskins v. First American Title Ins. Co., Civ. 10-5044, 2012 WL
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`5183908 at *5 (D.N.J. Oct. 18, 2012)(“documents may be within
`[defendant’s] control even if it does not have physical
`possession of the documents.”); Pennsylvania Trust Co. v. Dorel
`Juvenile Grp., Inc., Civ.A. 07-4029, 2011 WL 2789336 (E.D. Pa.
`July 18, 2011); Indem. Ins. Co. Of N. Am. v. Electrolux Home
`Products, Inc., Civ.A. 10-4113, 2011 WL 6099362 (E.D. Pa. Dec. 7,
`2011), aff’d 520 Fed. App’x 107 (3d Cir. 2013); Centimark Corp.
`v. Pegnato & Pegnato Roof Mgmt., Inc., Civ. A. 05-708, 2008 WL
`1995305 (W.D. Pa. May 6, 2008).
`Defendant Brennan argues that the target computer was
`frequently outside of Brennan’s exclusive control, that it
`belonged to her mother, and that Brennan was frequently away from
`the computer on trips taken out of state. Brennan also avers that
`“Ms. Cantrell, other family members, and even an independent
`contractor accessed the Target Computer at various times.” (Def.
`Response at 18). Critically, Brennan argues that “[w]hatever non-
`exclusive control Watchdog exercised over the Target Computer
`departed entirely as she departed her mother’s house on June 28,
`2013" to go to Houston, Texas. Id. Plaintiffs respond that
`Brennan lived in the house with the computer, had easy access to
`it, and in fact proposed on July 3, 2013, to opposing counsel
`that she could perform the mirror imaging of the computer using
`EZ Imager without Ms. Cantrell’s knowledge. (Pl. Motion at 15).
`Based on testimony adduced at the evidentiary hearing, the
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`Court credits Ms. Cantrell’s testimony that the computer was used
`almost exclusively, with very few exceptions, by Ms. Cantrell and
`by Brennan. The Court gives more weight to Ms. Cantrell’s in-
`person testimony, which was adamant on this point, than to her
`declaration stating that guests to Ms. Cantrell’s home frequently
`used the computer as well. See (Tr. 41-42, 59-60). The Court
`2
`also finds that this testimony accords with that of Brennan, who
`testified that she resided on the first floor of her mother’s
`home, on the same floor as the computer, and was able to use the
`computer without restrictions. (Tr. 154). However, Brennan was
`not always at home when she lived with her mother. (Tr. 185). The
`Court also finds that, on July 3, 2013, four days before Windows
`was reinstalled on the target computer, Defendant Watchdog’s
`counsel suggested to Plaintiffs’ counsel that Brennan use EZ
`Imager to obtain an image of the target computer herself. See
`(Pl. Suppl. Brief, Doc. No. 153, at Ex. B).
`The Court further finds that Brennan took a plane to Texas
`on June 28, 2013, (Tr. 188; Def. Ex. A-2), and that her Facebook
`3
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` In fact, Ms. Cantrell testified that she did not read her Declaration
`2
`before signing it, despite her counsel’s urging to do so. She signed the
`Declaration because she believed that if she did so “everything would be okay”
`regarding the litigation. (Tr. 60). Though the Court finds Ms. Cantrell’s
`testimony on the whole to display some lapses in memory, especially about the
`dates of certain events, her testimony regarding who used the computer was
`clear, consistent, and resolute.
` The Court gives less weight to Watchdog’s testimony that she was in
`3
`Texas continuously from June 28, 2013 until the day before the hearing, for
`the following reasons. First, the Court has been presented with Watchdog’s
`plane ticket to Texas but not copies of ticket(s) back to Philadelphia.
`Second, Watchdog’s counsel suggested to opposing counsel on July 3 that
`rd
`Brennan could herself obtain a mirror image of the target computer using EZ
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`posts on June 28, June 29, and July 7 indicated her location as
`Texas. (Pl. Ex. A-3, A-4, A-5).
`After reviewing the evidence before it, the Court finds that
`the target computer was sufficiently within Brennan’s control to
`meet the first element of the spoliation test. While she lived at
`her mother’s house, Brennan unquestionably had sufficient
`physical access to and unfettered use of the computer to exercise
`control over it.
`Further, Brennan’s legal control of the target computer was
`not dissolved by her decision to depart for Texas. Lack of
`physical possession does not necessarily negate a party’s control
`over evidence. In Indem. Ins. Co. of N. Am. v. Electrolux Home
`Products, Inc., Civ. A. 10-4113, 2011 WL 6099362 (E.D. Pa. Dec.
`7, 2011), the Plaintiff’s experts assessed fire damage after a
`fire had occurred in a school. Id. at *2. The experts preserved
`some evidence, but left behind a small metal can on the scene.
`Id. at *5. Later, the can was lost by the school, which was
`repairing the fire-damaged area. Id. at *3. The district court
`reasoned that “[t]he evidence here was within Plaintiff’s
`
`Imager. Third, the Court found Watchdog’s testimony on the whole to be less
`credible than that of other witnesses due to her bias and admission that she
`represents to her web followers that her MS medicine costs over $60,000 per
`year but makes no mention of the fact that she pays only $260 out of pocket
`(Tr. 180-81). Additionally, Brennan’s facebook posts that “[t]hese particular
`lawyers, attorneys, are very harassing. They are stupid too. I’m way smarter
`than these people” (Tr. 183) evidence a certain disregard for the seriousness
`of the claims against her.
`However, as explained in further detail below, Brennan’s physical
`location on the date of July 7, 2013, is not a dispositive factor in the
`Court’s analysis of her legal control of the target computer.
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`control. It is true that the School District, not Plaintiff, was
`responsible for the school grounds. Nevertheless . . .
`Plaintiff’s experts had the authority and ability to control
`potential evidence and remove it from the scene of the fire.” Id.
`at *8. In affirming the district court, the Third Circuit
`explained that “despite the fact that the experts should have
`known that the metal can and its contents would be discoverable
`and likely destroyed if not preserved at that time, they decided
`not to preserve the metal can . . . Therefore, the District Court
`did not abuse its discretion in determining that spoliation
`occurred.” 520 Fed. App’x 107, 111 (3d Cir. 2013). Thus, the
`district court and the Third Circuit agreed that the Plaintiffs’
`legal control over the metal can did not conclude when Plaintiffs
`relinquished physical control of it.
`Likewise, in Klett v. Green, 3:10-cv-02091, 2012 WL 2476368
`(D.N.J. June 27, 2012), the Plaintiff’s car was impounded by New
`Jersey State Police after an accident. Id. at *10. It was later
`destroyed while outside of Plaintiff’s physical possession. Id.
`at *9. The Court held that, even though the vehicle was impounded
`and not at plaintiff’s house, “there is no evidence that
`Plaintiff relinquished ownership, and thus control, of the
`vehicle prior to filing suit . . . As a result, the vehicle was
`under Plaintiff’s control, insofar as she had access to and
`ownership of it.” Id. (citing Zaloga v. Borough of Moosic, No.
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`3:10-cv-2604, 2012 WL 1899665 at *2 (M.D. Pa. 2012)(“Control is
`defined as the legal right to obtain the documents required on
`demand.”)) As in Indem. Ins. Co. of N. Am., the court in Klett
`found that ownership of, access to, and responsibility for an
`item determined control, not physical possession.
`Similarly here, Brennan’s unfettered access to, use of, and
`responsibility for the target computer define her control. Though
`Ms. Cantrell, not Brennan, was the ultimate owner of the target
`computer, Brennan was made responsible by court order for turning
`over the target computer for a forensic exam and had at her
`disposal the means of doing so, or could have petitioned the
`Court for assistance. Brennan’s voluntary relinquishment of
`physical access to the target computer does not allow her to
`argue that she did not have legal control when the computer’s
`reinstallation of Windows 7 occurred.
`In sum, the Court concludes that Brennan had control of the
`evidence at issue, the information on the target computer.
`B.
`Relevance to Claims or Defenses
`At the time that the reinstallation of Windows 7 occurred on
`July 7, 2013, at least some of the documents or files on the
`target computer were unequivocally relevant to the present suit.
`By that time, Brennan had admitted to using the target computer
`in connection with the websites central to the present case.
`(Third Declaration of Krista Brennan, Pl. Ex. B). Unlike the
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`other computers Brennan used in connection with her websites, the
`target computer was the only one to which she still had access
`during the summer of 2013, further increasing its standing in
`this case. See id. Moreover, Brennan argued in her pending Motion
`to Vacate Default Judgment (Doc. No. 82) that she never received
`e-mail service of the First Amended Complaint and Summons. By
`raising this defense to default judgment, Brennan reinforced the
`relevancy of the information on the target computer, including
`any emails, files, or other data regarding the lawsuit.
`Though Brennan’s counsel argued during the evidentiary
`hearing that any relevance to the Motion to Vacate Default
`Judgment was mooted by the Plaintiffs’ withdrawal of their
`opposition to this motion, the spoliation inquiry must focus on
`the claims and defenses in the case at the time of spoliation,
`not at this later date.
`The fragments of data found in the unallocated space of the
`target computer further bolster the Court’s conclusion that it
`contained relevant evidence. Prior to the forensic examination,
`counsel for the parties provided 59 search terms to Mr. Hunt.
`(Tr. 87). The search terms returned numerous hits, including 196
`hits for “Cannella,” 13 hits for “Metaphysicalgrrl,” and 2,749
`hits for “Watchdog,” (Pl. Ex. I), terms unlikely to produce false
`positive hits. (Tr. 136-37). Though these terms may have
`appeared on the computer as a result of filings associated with
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`the present litigation, these hits are nonetheless strongly
`suggestive of the presence of relevant evidence. Moreover, during
`the evidentiary hearing, counsel for Plaintiffs demonstrated that
`ITA found in the unallocated space of the target computer a
`paragraph mentioning Mr. Cannella which contained the same exact
`language, word-for-word, as a posting that later appeared on
`truthaboutcannella.com. (Tr. 198-202). This longer fragment, even
`more so than the hits for search terms conducted by ITA,
`demonstrates that the hard drive of the computer did contain
`relevant evidence. At minimum, it shows that Brennan accessed the
`truthaboutcannella.com website from the computer, and later
`cleared her browser history, moving the language into the
`unallocated space. In either case, it is highly likely that the
`information stored on the target computer was relevant to claims
`or defenses of the parties.
`The Court finds that the second element of the spoliation
`test is met.
`C.
`Actual Suppression or Withholding
`The party asserting spoliation must prove that evidence was
`actually suppressed or withheld. See Bull, 665 F.3d at 77. The
`Third Circuit has recently clarified that “[a] finding of bad
`faith is pivotal to a spoliation determination.” Id. at 79.
`Ordinary negligence does not suffice to establish spoliation.
`Bozic v. City of Washington, Pa., 912 F.Supp.2d 257, 270 (W.D.
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`Pa. 2012)(collecting cases). The party asserting spoliation must
`prove that evidence was intentionally withheld, altered, or
`destroyed. Bull, 665 F.3d at 79. Thus, no unfavorable inference
`of spoliation arises if the evidence was lost, accidentally
`destroyed, or where the failure to produce it is otherwise
`properly accounted for. Id. (citing Brewer, 72 F.3d at 334).
`After the Third Circuit’s decision in Bull, courts within
`this Circuit have sought to distinguish conduct constituting bad
`faith from conduct equivalent to mere accidental destruction or
`loss of evidence. See Bozic v. City of Washington, Pa., 912 F.
`Supp. 257, 269 (W.D. Pa. 2012)(“[w]hat remains to be determined
`after Bull is the requisite mental state or level of scienter for
`Bull “bad faith” . . . .). Typically, the destruction of evidence
`by an automated system pursuant to an even-handed policy, such as
`the re-recording of videotapes in the usual course of business,
`does not constitute bad faith. See, e.g., U.S. v. Nelson, 481
`Fed. Appx. 40, 42 (3d Cir. 2012). In these situations, the lack
`of bad faith stems in part from the fact that the party
`controlling the evidence had no reason to believe that it would
`be required in litigation. See, e.g., id; McCann v. Kennedy
`University Hosp., Inc., Civ. 12-1535, 2014 WL 282693 at *7
`(D.N.J. Jan. 24, 2014)(“the Court finds that prior to the
`videotapes being taped over, it was not ‘objectively foreseeable’
`to defendant that the videotapes from the emergency room lobby
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`were relevant to plaintiff’s claim . . .”); Tabon v. University
`of Pennsylvania Health System, 10-cv-2781, 2012 WL 2953216 at *4-
`5 (E.D. Pa. July 20, 2012)(defendants destroyed records as part
`of routine protocol, prior to the records being requested by
`plaintiff); Heck v. Memorial Health Systems, 1:10-cv-1675, 2012
`WL 3597175 at *2 (M.D. Pa. Aug. 20, 2012). Similarly, imperfect
`measures that fail to preserve some evidence from destruction by
`an automated system do not establish bad faith if active efforts
`were made to preserve other evidence. See Victor v. Lawler, 3:08-
`cv-1374, 2012 WL 1642603 at *105-6 (M.D. Pa. May 10, 2012),
`aff’d, 520 Fed. Appx. 103 (3d Cir. 2013).
`On the other hand, “a reckless disregard for the
`consequences of an intentional and conscious destruction of
`evidence, previously specially preserved for purposes of
`subsequent litigation, at a time when litigation is necessarily
`foreseeable,” may constitute bad faith. Bozic, 912 F. Supp. at
`269; see also Capogrosso v. 30 River Court East Urban Renewal
`Co., 482 Fed. Appx. 677, 682 (3d Cir. 2012), cert. denied, – U.S.
`–, 133 S.Ct. 544, 184 L.Ed.2d 341 (2012)(finding “no reason” to
`justify licensed attorney’s disposal of evidence she knew “would
`be essential in her lawsuit”). Additionally, a party’s
`obfuscation or lying can show that she is acting in bad faith.
`See Bull, 665 F.3d at 77.
`There is no question that actual suppression of evidence has
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`been effectuated by someone in this case. On July 7, 2013, an
`individual reinstalled Windows 7 on the target computer, thus
`wiping clean the information that previously existed on the
`computer, discarding the previous installation, and creating a
`new user profile. (Tr. 96-98). Such a reinstallation would not
`occur spontaneously without significant input by a user of the
`computer (Tr. 96-97); by its very nature, such action requires
`human intent, and typically, though not necessarily, specific
`intent by a person with an IT background. See id. The Court
`credits Gary Hunt’s testimony that, with the reinstallation,
`“everything was just started new.” Id. In addition, Mr. Hunt
`discovered the installation and use prior to July 7 of CCleaner
`th
`and Tracks Eraser Pro. (Tr. 98-99). Mr. Hunt testified that at
`least some files were deleted using Tracks Eraser Pro, and that
`finding both of these tools on one computer is “fairly rare” in
`his experience. (Tr. 125, 131-32). Although Tracks Eraser Pro and
`CCleaner have benign uses such as system optimization, (Tr. 93,
`127, 128), the Court finds innocent explanations of their use to
`be tenuous in the face of the fact that they were both used, and
`Windows 7 was later reinstalled as well.
`The determinative question in this fourth factor, however,
`is whether Plaintiffs have proven that Brennan’s actions, taken
`as a whole, display bad faith. As required by the Third Circuit,
`the Court must place Brennan’s behavior on the spectrum between
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`misrepresentation, bad faith, and intentional or knowing behavior
`on the one hand; and inadvertence, accidental loss, and properly-
`explained withholding of evidence on the other. See Bull, 665
`F.3d at 77, 79.
`The Court concludes that Brennan acted intentionally and in
`bad faith. First, Brennan knew with absolute certainty that the
`Plaintiffs sought the information on the target computer and that
`the Court had mandated its submission to a forensic exam. Cf.
`Bull, 665 F.3d at 77 (“there is not one instance in which we can
`verify that [plaintiff] knew that [defendant] wanted the original
`notes.”) Thus, Brennan was on notice that preservation of the
`data on the target computer was of the utmost importance. Second,
`after identifying computers from which she accessed her websites,
`Brennan abruptly departed Pennsylvania for Texas. Despite the
`impending production of the target computer, there is no evidence
`that Brennan took any measures to safeguard its data in her
`absence: she did not communicate to Ms. Cantrell the high
`importance of preservation of the computer in its current form,
`she did not notify her counsel of her departure, and she took no
`other meas