How To Address Wipers In Trade Secret Cases
2 01 2018
As a special feature of our blog—special guest postings by experts, clients, and other professionals—please enjoy this blog entry from Bobby R. Williams, Jr., a senior consultant at iDiscovery Solutions.
When litigation looms or a data preservation notice is sent out, key individuals or parties might try to delete data to avoid discovery – despite well-publicized horror stories regarding data destruction, phone and email wiping, and the risks of spoliation and sanctions. In many cases, if we find an absence of evidence during an examination, we typically also find evidence of destruction. We refer to these individuals as “Wipers.”
Wipers are the folks who roll the dice and try to game the system. They have enough knowledge to know how to destroy data, feel like they can get away with it, and take a chance. “The document is gone, aha!” might say the Wiper. However, Wipers still run into problems they didn’t anticipate. Even if they manage to delete or destroy the incriminating document or email, they’ve usually taken the time to install and run data destruction software, leaving behind associated artifacts showing the download and usage of such software. Another thing Wipers usually don’t consider: they leave behind other artifacts and data that gives us a clear picture of the document. Data showing when the document was created or modified, the folder it was saved in, even who opened it, when, and how many times. In trying to cover up the original footprints, they invariably left new footprints. And sometimes, even when a Wiper believes they completely deleted the document itself, it sometimes resides in a snapshot or backup they did not see.
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