In McLaughlin v. Lenovo Global Tech. (U.S.) Inc., No. 20-11770-PBS (D. Mass. July 18, 2023), Massachusetts Magistrate Judge Judith G. Dein sanctioned the plaintiff for turning in a wiped company laptop months after he was supposed to do so, limiting his reliance on calendar events and emails to those within the defendant’s system, reimbursement for the cost of 3 forensic examinations of the laptop by the defendant, and permissive adverse inference instructions regarding the deleted information.

Case Background

In this case involving claims for unpaid commissions and unpaid business expenses spanning several years in excess of $100,000, the plaintiff’s employment was terminated on April 14, 2020. His request for compensation allegedly was made for the first time after his termination on May 11, 2020, and purportedly was based on documentation maintained on his work laptop, which had remained in his possession after his termination in violation of the agreement with the Company that the plaintiff signed and Company policy. The wiped company laptop and its contents, which the plaintiff allegedly downloaded onto two SD cards, were not produced to Lenovo until June 2, 2021.

The defendant demanded the return of the laptop both before and after it learned of the litigation. Communications between counsel from December 2020 through the return of the laptop on June 2, 2021, led the defendant to believe that the plaintiff had not wiped or otherwise altered any of the material on the laptop, and that the only reason the plaintiff had not returned the Laptop was that he wanted to remove his personal information from the device. At no time did plaintiff’s counsel inform Lenovo’s counsel that the hard drive of the laptop had been wiped clean, despite having ample opportunity to do so.

After an unsuccessful mediation in May 2021, the plaintiff finally returned the laptop on June 2, 2021, along with an SD card which he testified was a “complete backup of everything that was on the machine”. But a forensic examination of the laptop revealed that the hard drive had either been wiped or was brand new, as it was empty and contained no data. The forensic examination of the SD card that the plaintiff had produced showed that everything had been downloaded to the SD card on June 2, 2021, but there was no .PST file on the SD card. On September 27, 2021, the plaintiff produced a second SD card containing a backup of the missing .PST file which contained his calendar, which a second forensic examination indicated wasn’t identical to the one on defendant’s servers.

The plaintiff claimed that he did not know that he would be in a dispute with the defendant until May 11, 2020, when his request for reimbursement was denied and that he wiped the laptop clean before then.

Judge’s Ruling

Judge Dein stated: “As an initial matter, McLaughlin should have known that he would be engaged in a dispute about his entitlement to substantial reimbursements from the moment his employment with Lenovo was terminated, at a minimum. Company policy called for reimbursements to be requested within 5 days of the expense being incurred, and McLaughlin was seeking payments going back 3 years. Thus, the argument that he first became aware of the possibility of litigation with Lenovo on May 11, 2020 is not persuasive.”

She added: “Moreover, the record does not support McLaughlin’s explanation for when he wiped the Laptop clean”, noting that the declaration of the defendant’s Chief Information Security Officer that the company has never had the ability to remotely remove an individual laptop computer from its Windows 10 operating system license belied the plaintiff’s statement that Windows 10 stopped operating after his termination. As Judge Dein noted: “The lengths to which McLaughlin has gone to obfuscate the record is exemplified by his response to Requests for Admissions (“RFA”) filed on November 2, 2021” when he refused to admit he erased the hard drive.

As a result, Judge Dein stated: “In sum, this court finds that Lenovo has met its burden of establishing that at the time McLaughlin wiped the Laptop clean, he knew he was either in, or likely to be in, a dispute with the Company.” She also stated: “McLaughlin argues strenuously that since he produced the two SD cards, he cannot be liable for spoliation since nothing was destroyed. This court disagrees. Levono[sic] has established that ESI was lost due to McLaughlin’s actions, and that it cannot be restored or replaced through further discovery…There is no question that McLaughlin intentionally destroyed the content of the hard drive of the Laptop, with full knowledge that the Laptop and the content thereon belonged to Lenovo. He was advised immediately upon the termination of his employment to return the Laptop – instead he wiped it clean.”

While the defendant requested dismissal of the action over the wiped company laptop, Judge Dein instead issued the following sanctions:

“Specifically, to the extent that he is relying on calendar entries to support his requests for commissions and expenses, McLaughlin shall be limited to supporting his claims to the calendar entries on the Outlook calendar in Lenovo’s system, and cannot use the .PST calendar entries he allegedly downloaded onto an SD Card. Additionally, McLaughlin shall reimburse the Company for the cost of its 3 forensic examinations of the Laptop as described herein. Finally, if the case goes to trial, the jury shall be instructed that McLaughlin wiped the Laptop before it was returned to the Company, making it impossible for the Company to determine if there was additional materials on the Laptop which had not been downloaded onto the SD cards that McLaughlin eventually provided, and that the jury may, but need not, presume that the deleted information was unfavorable to McLaughlin.”

So, what do you think? Should the Court have issued terminating sanctions over the wiped company laptop? Please share any comments you might have or if you’d like to know more about a particular topic.

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