By: Bradley J. Bartram, Vice President of Information Technology & CTO
Company X suspected that Ms. Employee was engaging in an outside employment activity while working under one of their contracts. The employee was using the company’s computers and internet connection to run a real estate business on the side. The companies IT department was asked to search the corporate network for the employee’s emails as evidence of the activity. They were able to locate a few emails on the network showing that the employee was involved in the real estate business. A short time later, the employee went on vacation and the decision was made to terminate. While the employee was away, the IT department took possession of the computers and searched them for additional evidence. They located 11 (eleven) more emails on the computer hard drive and the employee was terminated upon her return from vacation.
A short time later, the employee sued the company for age discrimination stating that she had immediate supervisor approval to engage in the outside activity during lunch and on breaks and that the real reason for termination was her age, claiming $150,000 in damages. The company hired DIGITS, an independent outside computer forensic company, to conduct a full forensic examination of the data in preparation of litigation.
The examination showed that the employee was using a personal web-based email account to conduct the real estate business while on company time. DIGITS recovered eighty-nine (89) emails with photos of real estate and other documents attached, clearing establishing the employees unauthorized use of the computer. Unfortunately, all of the evidence recovered had date and time stamps corresponding to the IT department’s review of the hard drive.
Company X fell victim to the temptation of utilizing their internal IT department to do a “quick review” of the data to evaluate their case against the employee. In the process, the most critical evidence that may have been used to completely dismiss the frivolous action was contaminated and subject to significant scrutiny. Company X may have been able to use the forensic evidence to support a motion to dismiss the action completely and even counter sue for costs. Unfortunately, as a result of the IT department’s inadvertent contamination of the data, the matter had to be settled. However, because of the powerful forensic evidence recovered by DIGITS, the case was settled for a nuisance value amount of $6,000.