Grubb v. Bd. of Trustees of the Univ. of Ill.

• Decision Date: 04 August 2010
• Docket Number: Case No. 09-cv-2255
• Citation: 730 F.Supp.2d 860
• Parties: John GRUBB, Plaintiff, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

730 F.Supp.2d 860

John GRUBB, Plaintiff,

v.BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant.

Case No. 09-cv-2255.

United States District Court,

N.D. Illinois,

Eastern Division.

Aug. 4, 2010.

James Kenneth Borcia, Tressler LLP, Chicago, IL, for Plaintiff.

Thomas James Piskorski, James Joseph Powers, IV, Seyfarth Shaw LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, JR., District Judge.

Plaintiff, John Grubb ("Grubb"), filed this lawsuit under the Computer Fraud and Abuse Act (18 U.S.C. § 1030) ("CFAA" or the "Act"). Among other things, the CFAA makes it illegal to intentionally engage in unauthorized access of a "protected computer," where the unauthorized access causes "damage and loss." 18 U.S.C. §§ 1030(a)(5)(B)-(C). "Damage" and "loss" are terms of art under the Act.Id. § 1030(d). Violators of the CFAA face potential criminal liability and may also be subject to civil suit: a person who suffers damage or loss as a result of a CFAA violation may obtain money damages, equitable relief, or both. Id. § 1303(g). Grubb maintains that Defendant, the Board of Trustees of the University of Illinois ("UIC"), violated the CFAA when it "hacked" into Grubb's computer to remove software. The Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331.

Before the Court is UIC's motion for sanctions for spoliation of evidence [14], in which Defendant contends that Plaintiff first sullied and then "wiped" the computer whose forensic fingerprints are at the heart of the case. For the reasons set forth below, Defendant's motion is denied.

I. Background

The case is brought under the CFAA, but the hard feelings between the parties start with UIC's decision to end its employment relationship with Grubb. Grubb was a clinical professor at the UIC College of Dentistry from January 2007 to August 2008. Compl. ¶ 6. For reasons that do not bear on the CFAA claim, UIC ended its relationship with Grubb prior to the three-year period of employment that the parties originally had anticipated. See generally Compl. ¶¶ 9-31.

On July 18, 2008, after Grubb was placed on administrative duties and forbidden from having contact with orthodontic residents (Compl. ¶ 27), a person from UIC's information technology department named Martin came to Grubb's office. Grubb was in a meeting with another faculty member at the time. Martin told Grubb that he had been ordered to remove certain UIC software from Grubb's laptop computer. Compl. ¶ 31. Grubb advised Martin that he was unavailable to supervise the work-which Grubb aimed to do because the laptop had confidential information on it-but that Martin could return on July 21 to remove the UIC software. Compl. ¶¶ 35, 41. However, when Grubb returned from lunch on July 18, he discovered that UIC's information technology department had accessed the laptop computer and removed the UIC software. According to the complaint, the "hacking" caused at least $5,000 in damages; according to Grubb's deposition testimony the damage was far more severe, totaling nearly $1 million. Compare Compl. ¶ 45, with Grubb Dep. at 201. When Grubb confronted UIC's IT department about the breach, a worker responded, "[W]e're asked to do a lot of shitty things around here." Grubb Dep. at 101.

The laptop computer was owned not by Grubb but by the American Board of Orthodontics ("ABO"). Compl. ¶ 32. According to Grubb, the computer contained personal and sensitive information, as well as testing data and private patient information. Compl. ¶¶ 33, 40.

After the July 18 incident, Grubb informed ABO about the incident and raised the concern that information on the computer may have been compromised. Although the record is a bit murky on this point, it appears that counsel for ABO recommended forming a committee to handle any dispute with UIC. It also appears that Grubb's computer expertise, like most people, falls somewhere in that broad swath between technophobe and technophile: "I don't know anything about computers other than that I turn them on and I hope they work, and I'm very astute at using Adobe Photoshop, PowerPoint those kinds of issues." Grubb Dep. at 183.

On August 18, 2008, a lawyer from the firm Sidley Austin LLP, which represented ABO, sent Grubb an e-mail directing him to stop using the laptop computer:

I have been advised by out [sic] IT security folks that, if you have been using the computer, it is imperative that you stop using it as soon as possible. The more it is used after the unauthorized access, the harder it will be for us to document what materials were accessed. We are trying to identify a local expert to check the access history on the computer and I will let you know as soon as we have made that determination.

Def. Mem., Ex. F (Lynn D. Fleisher e-mail). Grubb, apparently unsatisfied with the expertise of lawyers, asked ABO's IT specialist, McEvoy, for his thoughts on what the lawyer had written. Grubbs told McEvoy that between the July 18 incident and the August 18 e-mail from the lawyer, he had frequently used the computer. McEvoy indicated that if Grubb had "used the computer a lot it would be very difficult to find out what was accessed." Grubb Dep. at 179. In addition, McEvoy "questioned [the lawyer's] IT skills as to make that judgment because that's what he [McEvoy] does for a living." Grubb Dep. at 181. McEvoy further indicated that it would be "impossible" to determine what UIC had accessed on the computer based on the total amount of Grubb's usage to that point. McEvoy recommended that Grubb continue to use the computer. Grubb Dep. at 181-82.

In November 2008, ABO gave Grubb a new computer. Grubb returned the old computer to ABO. At that time, ABO IT specialist McEvoy transferred material from the old computer to the new computer. He then "mirrored" the hard drive on the old computer and kept that mirror "for about two to three weeks," before wiping the hard drive of the old computer and deleting the mirrored image of that old hard drive. Grubb Dep. at 23.

II. Analysis

UIC's motion for sanctions for spoliation of evidence [14] contends that Grubb "has rendered it impossible for [UIC] to prove the content or condition of the laptop computer on the date of Defendant's access; what was accessed by Defendant; and whether any data or information on the laptop computer was impaired by Defendant's access on July 18, 2008." Def. Mem. at 2. Spoliation of evidence occurs where a party "destroys evidence relevant to an issue in the case." Smith v. United States, 293 F.3d 984, 988 (7th Cir.2002). UIC asks that the case be dismissed or, alternatively, that the Court deem admitted that UIC did not access, obtain, alter, or destroy Grubb's laptop or its contents. ¹

UIC's motion raises a serious issue, because the judicial system is premised on the honesty and good faith efforts of the parties involved. See Quela v. Payco-Gen. Am. Credits, Inc., 2000 WL 656681, at *7 (N.D.Ill. May 18, 2000). Where honesty is replaced with falsehood, a party's right to litigate before this Court comes into question. Id.; see also Krumwiede v. Brighton Assocs., LLC, 2006 WL 1308629, at *8-11 (N.D.Ill. May 8, 2006). The Seventh Circuit has warned that "[l]awyers and litigants who decide they will play by rules of their own invention will find that the game cannot be won." Nw. Nat'l Ins. Co. v. Baltes, 15 F.3d 660, 663 (7th Cir.1994).

A. Legal Standard

Before a Court may impose sanctions for the destruction of evidence, the party moving for sanctions must make a showing that destruction of materials occurred in bad faith.Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir.2008). Bad faith generally means that the destruction occurred "for the purpose of hiding adverse information." Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir.1998); see also Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir.1992) (bad faith is "conduct which is either intentional or in reckless disregard of a party's obligations to comply with a court order"). In addition, where destruction occurs prior to litigation, it must be shown that the non-moving party had "a duty to preserve evidence because it knew, or should have known, that litigation was imminent." Trask-Morton, 534 F.3d at 681.

Where the required showings have been made, the Court has the power to enter a default judgment or dismiss a case-or to impose a less severe sanction-under the Court's inherent authority or pursuant to Rule 37 of the Federal Rules of Civil Procedure. See Grochocinski v. Schlossberg, 402 B.R. 825, 842-43 (N.D.Ill.2009) (a party's destruction of, and failure to preserve, evidence is sufficient evidence of bad faith to warrant imposition of default judgment); Krumwiede, 2006 WL 1308629, at *8 (default judgment as a sanction even where evidence was destroyed prior to commencing litigation); Quela, 2000 WL 656681, at *6 (entering default judgment where a defendant falsified evidence and testimony to influence case outcome) (citing Diettrich v. Nw. Airlines, Inc., 168 F.3d 961, 964 (7th Cir.1999)); Ciba Specialty Chems., Corp. v. Zinkan Enters., Inc., 2003 WL 22309275, at *4 (S.D.Ohio July 29, 2003) (ordering dismissal of declaratory judgment claims and striking of affirmative defenses in response to serious abuses).

Default judgment or dismissal is appropriate where a lesser sanction under the circumstances would unfairly minimize the seriousness of the misconduct and fail sufficiently to deter such misconduct by others in the future. See REP MCR Realty, L.L.C. v. Lynch, 363 F.Supp.2d 984, 997-98 (N.D.Ill.2005); see also Marrocco, 966 F.2d at 223-24. Litigants cannot be permitted to say " 'oops, you've caught me', and thereafter be allowed to continue to play the game * * *." Dotson v. Bravo, 202 F.R.D. 559, 573 (N.D.Ill.2001), aff'd, 321 F.3d 663 (7th Cir.2003). Nonetheless, when considering the extreme sanction of dismissing a case with prejudice, the Court is mindful of the admonition that such a...