Free Order - District Court of Delaware - Delaware

Case 1 :04-cv-01207-GIVIS Document 1 14 Filed 04/12/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
POR THE DISTRICT OF DELAWARE
CORPORAL B. KURT PRICE, et al., )
)
Plaintiffs, )
)
v. ) C.A. No. 04-956 (GMS)
)
COLONEL L. AARON CHAFFINCH, et al. )
)
Defendants. )

)
SERGEANT CHRISTOPHER D. )
FORAKER, )
)
Plaintiff] )
) C.A. No. 04-l207(GMS)
v. )
)
COLONEL L. AARON CHAPFINCH, etal. )
)
Defendants. )
ORDER
WHEREAS, on August l9, 2004, B. Kurt Price ("Price"), a corporal with the Delaware State
Police (the "DSP"), Wayne Warren ("Warren"), a corporal with the DSP, and Christopher F oraker
("Foraker"), a sergeant with the DSP, (collectively, the "plaintiffs") filed the 04-956 action, alleging
violations of the First Amendment Free Speech Clause (Count I);
WHEREAS, on October 14, 2005, the plaintiffs filed an amended complaint in the 04-956,
adding a claim that the defendants’ conduct violated the First Amendment Free Petition Clause
(Count II.);
WHEREAS, on August 30, 2004, Foraker filed the 04-1207 action, which states four counts
against the defendants, including Free Speech Retaliation (Count I), Petition Clause Retaliation

Case 1 :04-cv—01207-GIVIS Document 114 Filed 04/12/2006 Page 2 of 3
(Count H), Defamation (Count IH), and False Light Invasion of Privacy (Count IV);
WHEREAS, on January 25, 2006,the plaintiffs filed a Motion for Sanctions and Other Relief
(D.I. 87) in both cases;
WHEREAS, the motion asserts that the defendants intentionally destroyed relevant evidence
after having been put on notice of the above—captioned cases, namely the hard drive of Colonel L.
Aaron Chaffinch’s ("Chaffinch") computer;
WHEREAS, the motion requests the court to impose sanctions in the form of a default
judgment against the defendants or, in the altemative, shift the burden of proof on each and every
element of the plaintiffs’ claims to the defendants, provide the jury with an adverse inference
instruction, impose a fine on the defendants, and award the plaintiffs attomeys’ fees and costs
associated with the motion;
WHEREAS, on February 8, 2006, the defendants filed an opposition (D.I. 93) to the
plaintiffs’ motion asserting that, while Chaffinch’s hard drive is no longer available, it is redundant
in light ofthe process by which the DSP stores its data;'
I The defendants do admit that "a user may manually designate a different file path when
saving a document." (D.I. 93, at 3 n.l) However, they contend that there is no evidence that
Chaffinch knew how to designate a different file path, or that he used his office computer on a
regular basis. (Id.) Additionally, they contend that it was the plaintiffs’ duty to question
Chaffinch about the use of his office computer during his August 30, 2005 deposition. (Id.) The
court finds this argument specious, however, in light of the fact that the plaintiffs did not leam of
the "re-imaged" hard drive until after Chaffinch’s deposition. (See D.I. 102, at 6.) Moreover,
because the defendants "wiped" or "re—imaged" Chaffinch’s hard drive, neither the court nor the
plaintiffs can determine at this juncture whether it is “exceedingly unlikely that Chaffinch’s hard
drive contained any evidence that has not already been produced during discove1y," as the
defendants contend.
2

Case 1 :04-cv—01207-GIVIS Document 114 Filed 04/12/2006 Page 3 of 3
`WHEREAS, after having considered the parties’ submissions and relevant case law, the court
concludes that the defendants had a duty to preserve Chaffinch’s hard drive;2 and
WHEREAS, the court also concludes that it needs more infonnation to enable it to determine
which type of sanction, if any, is appropriate;
IT IS HEREBY ORDERED that:
l . The defendants shall engage an independent expert consultant to determine whether
Chaffinch’s hard drive can be recovered.
2. The plaintiffs and defendants shall each submit to the court the names and
qualifications of at least two independent expert consultants.
3. The defendants shall bear the cost of engaging the independent expert consultant.
4. In addition, the court has determined that an award to the plaintiffs of reasonable
attomeys’ fees and expenses for the prosecution the motion for sanctions is appropriate under the
circumstances.
Dated:Aprilj_L,2006 { E - iii $4
UNIT DSTA ES DISTRICT GE
2 Indeed, the court would assume that a law enforcement organization as large and
sophisticated as the DSP would have known better than to "re—image" or "wipe" a computer hard
drive that might yield relevant evidence in pending lawsuits, given the training that DSP officers
receive conceming the protection and retention of evidence.
3