This post was written by Andrew Bernasconi and Nathan Fennessy.
In yet another reminder about the importance of maintaining evidence on company-issued laptops, BlackBerrys, or other electronic devices, the United States District Court for the Northern District of California recently sanctioned a qui tam relator for destroying more than 10,000 documents on his company-issued laptop. Moore v. Gilead Sciences, Inc., No. C 07-03850 SI, 2012 WL 669531 (N.D. Cal. Feb. 29, 2012).
The relator admitted to “wiping” the hard drive of his laptop multiple times prior to the filing of his qui tam complaint against his former employer, a pharmaceutical company, alleging violations of the Federal False Claims Act, 31 U.S.C. § 3730 – including a week before the qui tam complaint was filed. The relator also admitted to “wiping” his hard drive again at least once after Gilead issued a document preservation/hold memo, and before he brought a retaliation and discrimination claim against his former employer.
The court held that the relator’s actions were “egregious” and constituted “willful and bad faith spoliation of evidence.” The court, however, declined to impose monetary sanctions and instead determined that an adverse inference instruction to the jury was an appropriate sanction.
This decision may assist companies defending against False Claims Act or whistleblower actions, particularly where the whistleblower ignores the company’s attempts to preserve information. Moreover, this decision is a reminder that all companies need to be vigilant with their own employees to ensure that documents are being preserved after the issuance of a document-hold notice.