Appeals Court Affirms Ruling Denying Motion to Dismiss Because of Plaintiff’s Use of CCleaner: eDiscovery Case Law

In Liadis v. Suburban Mobility Authority for Regional Transportation (SMART), No. 351205 (Mich. Ct. App. Jan. 28, 2021), an unpublished Per Curiam decision issued by the Court of Appeals of Michigan, the Court affirmed the decision of the trial court to deny the defendant’s motion to dismiss the case after approximately 41,000 unidentified files were deleted by a computer program called “CCleaner” on the plaintiff’s laptop.

Case Background

In this case, arising from a claim of head trauma from a motor vehicle accident when a bus owned by the defendant struck plaintiff’s vehicle while it was stopped in traffic, the defendant sought production of the plaintiff’s personal laptops, claiming they were likely to contain evidence that would either support or refute plaintiff’s claims.  The trial court ordered plaintiff to produce her laptops to the defendant’s computer forensic expert. In the days leading up to and including the trial court’s entry of the order compelling production of the laptops, approximately 41,000 unidentified files were deleted by a computer program called “CCleaner” on the plaintiff’s laptop.  As a result, the defendant moved to dismiss the plaintiff’s complaint on the basis of the destruction of evidence and discovery violations. A four-day evidentiary hearing was held by the trial court, after which the trial court denied the defendant’s motion to dismiss. 

The defendant appealed, arguing that the trial court abused its discretion when it denied defendant’s motion to dismiss because it ignored the volume and timing of the deletions, found plaintiff’s computer forensic expert to be more credible than defendant’s computer forensic expert, and, most importantly, found the deletions to be unintentional.  The defendant also argued that dismissal was appropriate because plaintiff failed to comply with two court orders regarding discovery. According to defendant, these violations were independent reasons for the trial court to dismiss plaintiff’s complaint.  Finally, the defendant argued that even if the trial court did not err by failing to dismiss the case, it nevertheless abused its discretion by failing to impose some other sanction short of dismissal.

Court’s Ruling

With regard to the defendant’s first argument, the Appeals Court stated: “Contrary to defendant’s arguments, however, the record supports the trial court’s factual finding that plaintiff did not intentionally destroy evidence, which finding cannot be overturned absent clear error…The trial court found it ‘compelling that both experts agree the program at issue, CCleaner, was installed before the instant action was filed,’ and that ‘The experts also agree the program was installed in such a manner as to be run automatically. Each time the computer was switched on, the program would automatically delete certain files and clean the hard drive.’… These facts amply support the trial court’s decision.”

With regard to the defendant’s second argument, the Appeals Court, noting that “dismissal of plaintiff’s complaint is a ‘drastic’ form of relief, warranted only in the most extreme cases”, stated: “Contrary to defendant’s arguments, the trial court did not abuse its discretion by denying defendant’s motion to dismiss on the basis of the purported violations of these orders.”

As for the third argument, the Appeals Court stated: “Given that defendant sought dismissal of plaintiff’s complaint, and did not seek any lesser sanctions, it cannot be said the trial court plainly erred in limiting its ruling to the only relief defendant sought…Indeed, for us to conclude that the trial court plainly erred would require us to find that it should have sua sponte granted relief that defendant did not request and that plaintiff did not have an opportunity to oppose. We decline to do so. The trial court ruled on the motion before it; it did not err by not awarding relief that defendant failed to request. Moreover, the trial court did hold open the possibility of alternative, less drastic relief in the form of an adverse instruction to the jury at trial, if defendant requested one. Thus, the trial court properly measured the range of possible alternative sanctions, and determined that no sanction was justified against plaintiff, save possibly for an adverse jury instruction. Again, we find no abuse of discretion in the trial court’s actions”.

As a result, the Appeals Court stated: “The trial court concluded that plaintiff did not intentionally destroy evidence, nor was it likely than any evidence in fact was lost. The trial court considered its range of options, and determined that neither dismissal nor a lesser sanction was appropriate other than a possible adverse jury instructions. We find those decisions well-supported and within the trial court’s discretion. Accordingly, we affirm the trial court’s order denying the motion to dismiss…Plaintiff, as the prevailing party, may tax costs pursuant to MCR 7.219.”

So, what do you think?  Do you think the defendant should have requested lesser sanctions as a backup option?  Please share any comments you might have or if you’d like to know more about a particular topic.

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