CRA expert and Vice President, Dan Roffman, was recently retained by McDermott, Will & Emery LLP (McDermott) to testify as a forensic expert on behalf of Plaintiff BDO USA, LLP (BDO) in The Superior Court of the State of Delaware at a sanctions trial that was prompted based on Mr. Roffman’s expert finding that the Defendants had committed spoliation. After reviewing Mr. Roffman’s expert report in the matter, the Chancellor noted, “This is the worst case of spoliation that I have ever encountered in my practice and on the bench.”1 Following a two-day spoliation hearing in which the Chancellor heard testimony from Mr. Roffman, she ruled in favor of BDO by granting BDO a default judgement, the ultimate sanction for serious discovery violations.
In 2021, BDO filed a lawsuit against EverGlade Global, Inc. (EverGlade) to enjoin a smear campaign that had allegedly been conducted by EverGlade and its founder, a former BDO partner. The Court ordered discovery and the CRA team analyzed computers obtained through a forensic protocol. Mr. Roffman submitted a report in 2022 which identified that much of the evidence he had expected to analyze had been deleted. Mr. Roffman’s findings included that EverGlade performed the following destructive actions after the lawsuit had been filed:
- set up CCleaner (a utility program designed to delete unwanted files from a devices) to automatically remove prior internet history, recently opened documents, and items in the recycle bin, and that this process could have deleted over 100,000 files from EverGlade’s founder’s work laptop;
- wiped internet history from the founder’s personal iPhone and iPad;
- deleted files and images from an EverGlade OneDrive account;
- destroyed documents on seven thumb drives; and
- conducted factory resets of the founder’s personal laptop.
Although the deletion was extensive, Mr. Roffman was able to use sophisticated forensic tools to reconstruct traces of activity on the EverGlade founder’s laptop, which revealed that EverGlade was indeed involved in the smear campaign.
BDO’s counsel, McDermott, moved for sanctions in the form of a default judgment and fee-shifting. At a two-day spoliation hearing, the Court heard testimony from Mr. Roffman and Everglade’s founder, who admitted to the spoliation. In the Chancellor’s memorandum and order granting default judgement, she wrote “EverGlade’s acts of spoliation are among the worst one could imagine. If punishment is appropriate anywhere, it is here. If there is any conduct this court needs to deter in future litigation, it is the spoliation committed here. Given the scope of EverGlade’s spoliation, neither adverse inferences nor other lesser sanctions would suffice.”