Gone But Not Forgotten

In "Men in Black," Will Smith carries a tool that is the Holy Grail of every litigant with something to hide: a "neuralizer" that erases aliens and Tommy Lee Jones' acting from the memories of those unlucky enough to witness either.  The real genius is that the subject doesn't know they've been "neuralized"--not only is the crime gone, but so is the cover-up.

There are a number of products on the marketplace that attempt to do the same for hard drives.  Some are surprisingly straightforward about their goal: destroying incriminating evidence.  For example, with a name that might provoke the most mild mannered judge, Evidence Eliminator boasts on its website that "If you do not use Evidence Eliminator, ' your PC is a ticking time bomb, waiting to go off!' . . . Only with Evidence Eliminator can you get the protection you deserve, only then can you use your PC to explore the Internet with confidence."  The company drives the point home with a page entitled "Reasons to Buy," which recounts statistics on prison violence.  The thinly veiled message is that the product can destroy incriminating evidence, and spare its purchaser jail time or civil liability.

However, unlike Will Smith's neuralizer, while the crime (or tort) may be erased from the hard drive, the cover-up is probably detectable to a competent forensic analyst.  In other words, the hard drive will typically contain an indication that it has been wiped.

This is a bad thing for those seeking to cover their tracks.  Attempts to destroy relevant evidence routinely lead to an adverse inference instruction if the following requirements are met: 1) the party was under an obligation to preserve the evidence; 2) the evidence was destroyed with a culpable state of mind (i.e. negligently or knowingly); and 3) the destroyed evidence was relevant.  In such a situation, the jury will typically be instructed that the party has destroyed information that would have been harmful to it.

It is easy to imagine situations in which such an instruction is far more devastating than the electronic information itself.  Thus, litigants should keep in mind the old adage that is as true today as it was in the paper era: the documents are what the documents are.  At least until a workable neuralizer is developed, attempting to hide incriminating documents creates more problems than it solves.