(Editor’s note: A version of this article originally appeared in Massachusetts Lawyers Weekly, a sister publication of New England In-House.)

An age bias claim should be dismissed because the employee systematically destroyed electronic evidence central to the case over a period of several months, a Massachusetts trial court judge recently ruled.

The judge said the employee intentionally concealed and destroyed critical evidence, which deprived his former employer the ability to mount a defense.

John F. Welsh of Boston, who represented the employer, said the judge found the employee’s destruction of critical evidence amounted to much more than negligence.

“When it’s intentional, as opposed to even gross negligence, there is a punitive aspect,” he said. “It’s important for the integrity of the court system that people who are contemplating spoliating evidence understand that, if they get caught, the penalty will be greater than the result they would suffer if they didn’t conceal or destroy evidence.”

Harvey A. Schwartz of Boston, who represented the employee, said there was no question that his client used computer software to destroy evidence and that his lies caused him to make unknowing misrepresentations to the court.

“What is in question, though, is whether the defendant was actually prejudiced by this,” he said. “Rather than dismissal, I would have preferred to put the facts before a jury and let them decide whether my client’s innocent explanation for his conduct was believable.”

He said the judge was most concerned about what she viewed as his client’s pattern of conduct.

The case is Covucci v. Keane Consulting Group, Inc., et al. (Mass. Superior Court No. 03-3584).

Unsatisfactory Employment

In September 2000, the employee, David Covucci, was hired as a senior vice president by the defendant, Keane Consulting Group. His immediate supervisor was co-defendant Linda Toops.

Covucci met with Toops in October 2001 to discuss his performance, which she viewed as unsatisfactory.

In October 2001, Covucci drafted a document from home on his personal laptop and named it “Linda.doc.” The disputed contents of this document and the whereabouts of the document itself and the computer on which it was drafted would become a central part of the case.

In the draft document, which Covucci e-mailed to his office computer using his AOL e-mail account, he summarized and responded to the topics discussed at the meeting with Toops.

At his office, Covucci opened the e-mail and made some changes. Then he cut and pasted it into a Lotus Notes e-mail and sent the revised document via e-mail to his supervisor.

In November 2001, Toops fired Covucci.

Covucci filed a complaint with the Equal Employment Opportunity Commission alleging he was fired in retaliation for complaining about age discrimination during his performance review.

Covucci claimed he referred in his e-mail to statements allegedly made by his supervisor about the need to replace older employees at the company with younger employees. However, the copy of the e-mail kept by the employer in a personnel file did not mention the statement or make any reference to age.

In response, Covucci accused Toops of doctoring the e-mail.

Spoiling Evidence

During discovery in the case, the employer, Keane Consulting Group, Inc., requested access to Covucci’s personal laptop computer, which contained information concerning the creation of the e-mail. But, Covucci lied and said he no longer had the computer.

When he learned Keane Consulting intended to conduct an examination of the computer if it were located, Covucci investigated products that could be used to scrub a hard drive.

After downloading those products on his laptop, he used them to clean the open spaces on the hard drive and delete information relating to several documents from a folder that contained information about his employment.

When he learned AOL had not preserved his e-mails, Covucci lied to his attorneys, telling them that he might, in fact, be able to find his laptop.

He then communicated with AOL to find out how to open the personal filing cabinet on the computer to determine if his October 2001 e-mail to himself was in the folder. After opening the folder, he used a computer product to get rid of it.

Covucci did not acknowledge he still had the computer until he was deposed in September 2004.

Keane Consulting filed a motion to dismiss the complaint as a sanction for what it referred to as “the intentional spoliation of material evidence” by Covucci.

Sanctions

The trial judge, Diane Kottmyer, said dismissal of Covucci’s claim was necessary to protect the integrity of the court system.

She said Covucci had “concealed the existence of a computer that was the subject of a discovery request until he had eliminated the possibility that any relevant evidence concerning the creation of the document that he relies on and describes as ‘crucial’ to his case could be retrieved from the hard drive,” she wrote.

She noted the employee’s conduct interfered with the court’s and the employer’s abilities to proceed with the case.

“Whether described as a persistent bad-faith repudiation of discovery obligations, … the intentional spoliation of evidence, … or a fraud on the court, …dismissal is the only appropriate remedy for his misconduct,” she said.

Kottmyer said Covucci lied during court proceedings and lied to his attorneys, which caused them to make false representations to the employer.

“This case does not involve a single hasty act,” she said. “He … engaged in the systematic destruction of material evidence over a period of months.”