Postle v. SilkRoad Technology, Inc.

Filing 54

ORDER granting in part and denying in part 24 Motion for Sanctions - Motion for Spoliation Sanctions; denying 50 Motion to Stay Any Rule 37(E) Inferential Relief. Consistent with the parties' joint stipulation (doc. no. 23 ), the existing stay of the litigation schedule is lifted and the parties shall negotiate and jointly submit a proposed, revised litigation schedule on or before March 5, 2019. So Ordered by Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Frank D. Postle
v.

Civil No. 18-cv-224-JL
Opinion No. 2019 DNH 026

SilkRoad Technology, Inc.
MEMORANDUM ORDER
This motion for spoliation-related sanctions turns on
whether an employee intentionally deleted information relating
to both his claims and his employer’s counterclaims from his
work-issued laptops before returning them.

Plaintiff and

counterclaim-defendant Frank Postle, a former IT administrator
for defendant and counterclaim-plaintiff SilkRoad Technology,
deleted information from his assigned Dell laptop and a
Microsoft Surface Book laptop and reset the Dell to factory
default before returning both devices to SilkRoad.

SilkRoad

contends that both devices contained information relevant to
Postle’s wage claim under N.H. Rev. Stat. Ann. § 275:44 and
SilkRoad’s counterclaims for breach of contract, fraudulent
concealment, and tortious interference with economic advantage
premised on the theory that Postle engaged in or supported
hacking activities against the company.

SilkRoad also contends

that a private Virtual Machine that Postle deleted also
contained information relevant to its counterclaims.

After hearing oral argument and testimony from the
plaintiff,1 the court grants SilkRoad’s motion in part.

Postle

intentionally deleted information related to the parties’ claims
from his Dell laptop, despite being aware of — and himself
invoking — the potential for litigation at the time.

Concluding

that Postle intentionally spoiled relevant evidence unobtainable
elsewhere, the court may presume that the information deleted
from his Dell laptop was unfavorable to Postle and may so
instruct the jury at trial.

The court also awards SilkRoad a

portion of its attorneys’ fees and costs accrued in bringing and
litigating its spoliation motion.
Applicable legal standard
Federal Rule of Civil Procedure 37(e) governs a party’s
failure to preserve electronically stored information such that
it “cannot be restored or replaced through additional
discovery.”

If the court finds “prejudice to another party from

loss of the information,” it “may order measures no greater than
necessary to cure the prejudice.”

Id. Rule 37(e)(1).

If the

court finds “that the party acted with the intent to deprive
another party of the information’s use in the litigation,” it
may impose one of three sanctions.

Id. Rule 37(e)(2).

It may

While the court does not generally hear evidence on discoveryrelated motions, it permitted Postle to testify in light of his
repeated request to do so. E.g., Obj. (doc. no. 30-29) at 6.
1

2

“presume that the lost information was unfavorable to the party;
instruct the jury that it may or must presume the information
was unfavorable to the party; or dismiss the action or enter a
default judgment.”

Id.

SilkRoad, as the moving party, bears the burden of proving
the threshold requirements that relevant evidence has been lost
and cannot be replaced, that it should have been preserved, and
that it was not preserved because Postle failed to take
reasonable steps to preserve it.

See Watkins v. New York City

Transit Auth., No. 16 CIV. 4161 (LGS), 2018 WL 895624, at *10
(S.D.N.Y. Feb. 13, 2018).

It is also SilkRoad’s burden to prove

that Postle acted with the intent to deprive it of use of that
evidence in this litigation.

See id.

“The rule does not,”

however, “place a burden of proving or disproving prejudice
[under Rule 37(e)(1)] on one party or the other.”

Fed. R. Civ.

P. 37(e)(1), advisory committee’s note to 2015 amendment.
The quantum of evidence by which SilkRoad must meet these
burdens is unresolved.

Some courts have required that

spoliation be proven by only a preponderance of the evidence.
See Watkins, 2018 WL 895624, at *10.

The First Circuit Court of

Appeals has in the past applied a clear-and-convincing standard
to discovery misconduct resulting in severe sanctions.

See

Anderson v. Cryovac, Inc., 862 F.2d 910, 926 (1st Cir. 1988).
Citing Anderson, a court in this Circuit has applied that clear-

3

and-convincing standard to Rule 37(e) sanctions.

See Wai Feng

Trading Co. Ltd v. Quick Fitting, Inc., No. CV 13-33WES, 2019 WL
118412, at *5 (D.R.I. Jan. 7, 2019) (Sullivan, M.J.).
Background
SilkRoad employed Postle in an information-technology role
for about fifteen years.

In March 2017, Postle began to work

for SilkRoad pursuant to a contract with a stated term of
March 6 to June 19, 2017.2

Under this contract, Postle worked

from home and remotely accessed SilkRoad’s computer system.
About a month into that contract, on April 4, an
unidentified and unauthorized individual accessed SilkRoad’s
computer system and sent an email to its employees, board of
directors, and customers that appeared to come from its CEO,
John Shackleton.

SilkRoad suspended Postle’s work and his

ability to access its computer systems two days later in light
of a suspected connection between Postle and the hacker.

It

informed him that his contract was “hereby suspended pending
investigation.”3

Postle premises his wage claim on the argument that he remained
an employee after beginning to work under this contract;
SilkRoad argues that the contract rendered him an independent
contractor. The court takes no position on the viability of
either claim or defense in resolving this motion and its use of
terms such as “employer,” “employee,” or “contractor” should not
be taken as such.
2

3

Postle Decl. Ex. 5 (doc. no. 30-8).

4

On April 12, 2017, SilkRoad requested that Postle return
four devices that he used for work:

a Dell laptop, a Surface

Book tablet, an iPad, and an iPhone.

Specifically, SilkRoad

requested he “return SilkRoad’s assets,” which “consist of”
those four devices.4

Its attorneys followed up with an emailed

letter on April 14, reiterating the request that Postle return
those four devices and including the following litigationrelated language:
In addition, we wish to remind you of your obligations
with regard to Silkroad [sic] property, which includes
the preservation of any information, messages, emails, documents or other materials on these devices.
You may not destroy or delete any such information on
such a device without our express authorization.5
According to Postle, he did not read — or, at least, did not
appreciate the import of — this language until April 17.

At

some point between April 12 and April 17, Postle deleted his
user profile from the Dell and browsing history and other data
from the Surface Book.6

Postle testified at the hearing that he

deleted the information in such a way as to render it
unrecoverable.

He also began to restore both devices to their

4

Postle Decl. Ex. 4 (doc. no. 30-7).

5

Postle Decl. Ex. 14 (doc. no. 30-17).

During his deposition, he testified that he deleted his user
profile from the Surface Book as well. At the hearing, he
revised that testimony, claiming that he only deleted personal
files and browsing history from that device.
6

5

factory settings, a process that, both parties agree, renders
deleted information functionally unrecoverable.
He completed the process on the Dell, though he testified
at the hearing, consistent with an April 17 email, that he
interrupted the factory reset on the Surface Book upon realizing
that SilkRoad wanted him to retain all data on the devices.

He

claimed he was able to load the Surface Book after interrupting
the reset.

When SilkRoad and its experts have attempted to

recover data from the Surface Book, however, they have
encountered BitLocker encryption.7

Postle’s testimony concerning

just when BitLocker was enabled on the Surface Book has
undergone several iterations.

During his deposition, he

testified that he enabled it shortly after the April 6, 2017
attack on SilkRoad’s systems.8

This is consistent with a search

he ran on April 4, 2017, on how to “convert existing drive to
bitlocker.”9

In his deposition errata and at the hearing, on the

other hand, he revised his position to claim that it had been

Parisi Decl. (doc. no. 25) ¶¶ 10-12. BitLocker is an
encryption program built into certain versions of Microsoft
Windows. Under certain circumstances, when activated, a user
must enter a password as the computer loads. This password is
known as a recovery key.
7

8

Goldberg Decl. Ex. 1 (doc. no. 26-1) at 50.

9

Parisi Decl. Ex. 1 (doc. no. 25-1).

6

enabled around June 20, 2016.10

In any event, Postle confirmed

that he discarded the recovery key at some point after it was
enabled; and because he did so, SilkRoad has not been able to
access any data that may remain on that device.11
On May 1, 2017, Postle noticed suspicious activity directed
against the Virtual Machine that he used to access his personal
email server.12

That day, he emailed SilkRoad and, among other

things, informed them about this activity.13

SilkRoad’s counsel

responded the next day, reminding Postle of his duty to preserve
information “on [his] Apple backup,” but without mentioning the
Virtual Machine.14

Postle then deleted the Virtual Machine.

By

doing so, Postle testified, he did not delete any emails from
his account.

SilkRoad argues, instead, that he deleted any data

relating to the source of the potential hack of that Virtual
Machine.

He received an email on May 5 from the purported

hackers, claiming he had foiled their efforts.15

10

Douthitt Decl. Ex. 1 (doc. no. 35-2).

11

Parisi Decl. (doc. no. 25) ¶¶ 10-12.

A virtual machine
a physical computer
no. 24-1) at 3 n.1.
to send and receive
12

“is a way of emulating the functionality of
using software.” SilkRoad’s Mem. (doc.
Postle had Microsoft Outlook, software used
email, installed on the Virtual Machine.

13

Goldberg Decl. Ex. 9 (doc. no. 26-3).

14

Id.

15

Goldberg Decl. Ex. 11 (doc. no. 26-3).

7

Analysis
A.

Threshold requirements

The party moving for spoliation-related sanctions must
establish, by clear-and-convincing evidence, see Wai Feng, 2019
WL 118412, at *5, the following threshold requirements:
(1) that relevant electronically-stored information (ESI) has
been lost and cannot be restored or replaced through additional
discovery; (2) that it should have been preserved; and (3) that
it was not preserved because a party failed to take reasonable
steps to preserve it.

Fed. R. Civ. P. 37(e).

Here, SilkRoad

has satisfied these threshold requirements with respect to the
Dell laptop and Surface Book.

The court is not satisfied that

it has done so with respect to the Outlook Virtual Machine.
1.

Lost ESI

SilkRoad “must establish, first, that ESI has been lost and
is not available in any other location.”
118412, at *5.

Wai Feng, 2019 WL

This further requires SilkRoad to demonstrate

that information relevant to the claims at issue existed on the
devices, was removed from those devices, and does not exist
anywhere else.

SilkRoad has made this showing with respect to

all three devices.
Information relevant to both Postle’s wage claim and
SilkRoad’s counterclaims probably existed on the Dell laptop and
Surface Pro, including information concerning Postle’s search
8

histories,16 when he edited his LinkedIn profile to reflect selfemployment,17 and the history of his remote access to SilkRoad’s
systems.18

Though Postle argued that no relevant information

existed on those devices because he used them solely to remotely
access his workspace on SilkRoad’s systems, he testified at the
hearing that he used the devices for other purposes — including
to conduct internet searches — and that information such as his
search history is neither backed up nor available elsewhere.
With respect to the Dell, Postle conceded at the hearing
that he deleted his search history, user profile, and temporary
files.

He further admitted that he completed a factory reset,

rendering any information the device previously held
unrecoverable.
Postle also deleted information on the Surface Book.

He

testified during his deposition that he deleted his user profile
and temporary files from his Surface Book.19

At the hearing,

16

Goldberg Decl. Ex. 1 (doc. no. 26-1) at 31-32.

17

Id. at 144-46.

Id. at 32-33. Postle suggests that SilkRoad possesses at
least this information, which it may well with respect to any
authorized remote access of SilkRoad’s systems. While this may
be true with respect to authorized access of SilkRoad’s systems,
it would not have complete information concerning unauthorized
access — or to establish the lack of such access — from Postle’s
devices without information on those devices.
18

19

Goldberg Decl. Ex. 1 (doc. no. 26-1) at 150-51, 172-73.

9

however, he testified that he deleted only his personal files
and search history, and did not delete the user profile.

He

further testified that he did not complete a factory reset of
the Surface Book, once he realized his obligation to preserve
information, and that he was able to access the data remaining
on the device before he returned it to SilkRoad.20
Finally, SilkRoad has raised an inference that information
relevant to its counterclaims may have existed on Postle’s
Outlook Virtual Machine.21

Specifically, Postle claims that his

Virtual Machine was targeted by the same individuals who
attacked SilkRoad.22

He reported some information concerning the

attack — including the manner of it and the IP address of the
attacker — to SilkRoad after it occurred.23

Such information

certainly relates to whether or not Postle participated in some
manner in the attacks; additional forensic information along
that line may well have been obtained from the Virtual Machine
had Postle not deleted the Virtual Machine entirely.24

20

See Goldberg Decl. Ex. 1 (doc. no. 26-1) at 151.

21

See SilkRoad Mem. (doc. no. 24-1) at 19-20.

22

See Goldberg Decl. Ex. 11 (doc. no. 26-3).

23

Goldberg Decl. Exs. 9-10 (doc. no. 26-3).

24

Goldberg Decl. Ex. 1 (doc. no. 26-1) at 69-70.

10

Accordingly, SilkRoad has demonstrated that ESI, relevant
to both parties’ claims, has been lost and is not available
through other discovery.
2.

Duty to preserve

Second, SilkRoad must demonstrate that the lost ESI should
have been preserved.

Wai Feng, 2019 WL 118412, at *5.

This

requires a showing that, at the time Postle deleted the ESI, he
knew or reasonably should have known about the pending
litigation and that his ESI would be relevant to that
litigation.

Id.

SilkRoad has made this showing with respect to

the Dell and Surface Book, but not with respect to the Virtual
Machine.
Postle began deleting information from his Dell and Surface
Book at some point after receiving the April 12 email requesting
that he return them.

As discussed supra, information on those

devices was relevant to his wage claim.

He reasonably should

have been aware of the potential for litigation over his wage
claim before that day.
SilkRoad suspended his contract on April 6.25

Four days

later, Postle emailed SilkRoad’s head of human resources to
explain that, despite the suspension, he considered the contract

25

Goldberg Decl. Ex. 3 (doc. no. 26-3).

11

active “[a]bsent of termination for cause . . . .”26

At the

hearing, he testified that, as of this time, he did not believe
he had done anything that constituted cause for termination of
the contract.
Postle certainly contemplated litigation over that claim no
later than April 13, 2017, when he responded to the April 12
email requesting that he return the Dell and Surface Book by
claiming to have “contracted an attorney,” who “recommended that
I do not return anything until such time that I am fully paid on
the contract that you have suspended.”27

While the record is

unclear as to whether Postle deleted information from the Dell
and Surface Book before sending that April 13 email, he appears
to have been in the process of doing so at the time he sent it.
An hour after sending it, and after being informed that SilkRoad
sought information from other domain administrators’ hard
drives, Postle responded:

“They should have asked for that.

am busy clearing off my machines to return them.

26

I

They are going

Goldberg Decl. Ex. 4 (doc. no. 26-3).

Postle Decl. (doc. no. 30-3) ¶¶ 38-39; Postle Decl. Ex. 7
(doc. no. 30-10). Postle now claims that he had not in fact
contracted (or contacted) an attorney at that time and that his
statement was a “bluff on [his] part to get [his] contract
paid.” Postle Decl. (doc. no. 30-3) ¶ 39. Regardless of its
veracity, that he made the statement at all demonstrates that
Postle contemplated that legal action may be necessary to
resolve the wage dispute.
27

12

to be unhappy with the image on my dell as I just deleted my
SilkRoad user profile.”28

In deposition, he clarified that, at

the time he sent this text, he had deleted information but had
not yet begun to reset the Dell or Surface Book to factory
default.29
Postle began deleting information from his Dell and Surface
Book no earlier than April 12, two days after his email
contesting whether SilkRoad had “cause” to suspend his contract.
He reasonably should have been aware of the potential for
litigation for resolving his wage claim at this time.
And though Postle admits that he had not actually contacted
an attorney as of April 13,30 his invocation of counsel, his
demand for full payment on the contract, and his awareness that
SilkRoad would be “unhappy” with the reset of his devices on
that day suffice to demonstrate that Postle was unquestionably
aware of the potential for litigation concerning his wage claim
and of the existence of information relevant to that litigation
on those devices before he initiated the factory reset to
permanently remove it from the Dell.31
28

Postle Decl. Ex. 8 (doc. no. 30-11).

29

Goldberg Decl. Ex. 1 (doc. no. 26-1) at 172-73.

30

See supra n.24.

Postle received a letter from SilkRoad’s counsel on April 14,
2017, informing him of his duty to preserve information on his
Dell and Surface Book. The court credits his explanation, given
31

13

SilkRoad has not, however, carried its burden of
demonstrating that Postle should have anticipated litigation
over the attacks on SilkRoad’s systems at the time that he
deleted his Outlook Virtual Machine sometime between May 1 and
May 3, 2017.32

The Virtual Machine was not, as Postle observes,

included in the April 14 litigation hold letter or in a May 2,
2017 reminder of his obligations under that letter.
SilkRoad argues that Postle “appreciated the possibility of
litigation prior to the deletion of the Outlook [Virtual
Machine]” because he refused, on May 1, 2017, to produce backups
from other devices without a court order.33

To the extent that

he anticipated litigation at that juncture, however, it appears
to have been with respect to his wage claim.

SilkRoad points to

no evidence or testimony demonstrating clearly and convincingly
that Postle should have known that SilkRoad would bring
contract- and tort-based claims against him at that time.

While

he acknowledged, on April 4, 2017, that one of the hacker’s
at the hearing, that he did not fully read it or comprehend its
import until April 17, after he had deleted information from the
Dell and Surface Book. This is immaterial, however, because the
court concludes that his duty to retain information related to
his wage claim arose before that day.
To the extent that Postle’s Outlook Virtual Machine contained
relevant ESI, that information derives from the attempted attack
on Postle’s personal email and thus is related only to
SilkRoad’s counterclaims.
32

33

SilkRoad Mem. (doc. no. 24-1) at 7.

14

emails “totally looks like [Postle] generated it”34 and that his
wife thought “they are going to be after” Postle for the
attack,35 this evidence suggests only that he recognized he may
be a subject of SilkRoad’s investigation.

Two weeks later, he

told SilkRoad that he sought the advice of counsel with respect
to his contract, but that he did not “intend to retain a [sic]
attorney related to [its] investigation,”36 suggesting that he
did not contemplate litigation arising out of the investigation
at that time.

He further testified at the hearing that he did

not, as of May 1, anticipate litigation on that subject.
Even if he anticipated litigation generally concerning the
attacks on SilkRoad’s systems, SilkRoad has not demonstrated
that Postle should have been aware of the relevance to that
litigation of data derived from the attack on the Outlook
Virtual Machine.

At the hearing, Postle testified that, at the

time the attack on his own system occurred, he believed it to be
connected to a password that was compromised in 2016.

This

testimony is consistent with an email he sent to to SilkRoad at
the time of the attack.37

It was only several days after he

34

Parisi Decl. Ex. 2 (doc. no. 25-1).

35

Id.

36

Goldberg Decl. Ex. 7 (doc. no. 26-3) at 063.

37

Goldberg Decl. Ex. 10 (doc. no. 26-3).

15

deleted his Virtual Machine that the attackers emailed him,
claiming responsibility.38

Based on the evidence presented, to

conclude that Postle knew the attack on his system was connected
to that on SilkRoad at the time it occurred requires
presupposing that Postle conducted or participated in the latter
attack — a conclusion the court is not prepared to draw at this
stage in the litigation.
3.

Reasonable steps

Third, SilkRoad must demonstrate that Postle “failed to
take reasonable steps to preserve” the ESI after he was or
reasonably should have been aware of its relevance to impending
litigation.

Fed. R. Civ. P. 37(e).

In this case, taking

reasonable steps to preserve the information required, as a bare
minimum, that Postle leave the devices in the state in which
they existed on April 12, 2017, without taking affirmative steps
to alter that state.

Instead, as described supra, Postle took

active steps to delete relevant information from both the Dell
and Surface Book.

SilkRoad has therefore satisfied this

element.

38

Goldberg Decl. Ex. 11 (doc. no. 26-3).

16

B.

Intent

The court next considers “whether the loss of the ESI has
caused prejudice or whether the party in possession acted ‘with
the intent to deprive another party of the information’s use in
the litigation.’”

Wai Feng, 2019 WL 118412, at *6 (quoting Fed.

R. Civ. P. 37(e)(1)-(2)).

If Postle acted with the requisite

intent, no prejudice need be proven.

Fed. R. Civ. P. 37(e)

advisory committee’s note to 2015 amendment.

This “intent

requirement . . . is ‘stringent’ — it must be based on more than
just negligence or even gross negligence in producing or
preserving ESI.”

Wai Feng, 2019 WL 118412, at *7.

And SilkRoad

bears the burden of proving it.
1.

Dell laptop

Here, SilkRoad has demonstrated that Postle intended to
deprive SilkRoad of the use of information on the Dell laptop by
deleting it and restoring the laptop to its factory default,
rendering any deleted information unrecoverable.

Even if he

began deleting the information before he realized that SilkRoad
sought the return not only of the laptop but also of the
information it contained, as he contends, he continued his
deletion activities on the Dell laptop after coming to that
realization.

Specifically, on April 13, after learning that

SilkRoad sought the data from other domain administrators, he
texted a former colleague:

“They should have asked for that.
17

I

am busy clearing off my machines to return them.

They are going

to be unhappy with the image on my dell as I just deleted my
SilkRoad user profile.”39

Despite demonstrating the

understanding, through this message, that SilkRoad sought the
information on the laptop as well as the device itself, Postle
initiated a factory reset that rendered any remaining data
unrecoverable after he sent it.40
2.

Surface Book

The record is less clear with respect to Postle’s intent
concerning the Surface Book.

While he admitted to deleting

information such as his personal files and search history from
the device, he did not delete his user profile, as he had with
the Dell laptop, and it is unclear from the record whether he
deleted those files before or after becoming aware that SilkRoad
sought the data on his devices on April 13.

Furthermore, he

consistently testified that he did not conduct a factory reset
on the Surface Book and that he was able to access the data on
that device before he returned it to SilkRoad.

39

The BitLocker

Postle Decl. Ex. 8 (doc. no. 30-11).

Goldberg Decl. Ex. 1 (doc. no. 26-1) at 172-73. Postle
claimed in deposition that he deleted information from the Dell
and Surface Book pursuant to SilkRoad company practice. Id. at
198-200. SilkRoad has demonstrated, however, that no policy
exists requiring or requesting employees or contractors to
remove data before returning their devices. See id.
40

18

encryption on the Surface Book, of course, has more or less the
same effect as deleting information — SilkRoad is unable to
access it either way.
But SilkRoad has not demonstrated by clear and convincing
evidence that Postle intentionally enabled that encryption
before returning the device, to prevent SilkRoad from accessing
the data.

Instead, Postle has consistently testified that

BitLocker was enabled on the Surface Book no later than April 6,
2017 — and thus, as discussed supra, before he was aware of the
possibility of litigation.41

He has also suggested several

ultimately unsuccessful means by which SilkRoad might bypass the
encryption42 and offered to assist SilkRoad by searching for the
recovery key.

While SilkRoad’s reluctance to accept further

assistance from Postle is understandable at this juncture, his
offers are inconsistent with an intention to permanently deprive
SilkRoad of the information contained on the Surface Book.
Concluding that SilkRoad has not proven the requisite
intent necessary for sanctions under Rule 37(e)(2) with respect
to the Surface Book, the court turns to whether prejudice to
SilkRoad warrants a remedy under Rule 37(e)(1).

It is difficult

to measure just how the absence of that information prejudices

41

Goldberg Decl. Ex. 1 (doc. no. 26-1) at 5.

42

See Parisi Decl. (doc. no. 25) ¶ 11.

19

SilkRoad, however, without knowing precisely what his personal
files and search history contained or what information remains
on the device.

And that information is unavailable so long as

the Surface Book remains encrypted.

So, while the court

declines to impose a separate sanction with respect to the
Surface Book, should SilkRoad demonstrate at trial prejudice to
proving its claims or defenses arising specifically from the
lack of the information on the Surface Book, the court “may
order measures no greater than necessary to cure [that]
prejudice.”
C.

Fed. R. Civ. P. 37(e)(1).

Sanction

Having concluded that Postle deleted electronically stored
information from his Dell laptop with the intention of depriving
SilkRoad of its use in litigation, the court may, but is not
obligated to, impose one of three sanctions:

it may

(a) “presume that the lost information was unfavorable to”
Postle, (b) “instruct the jury that it may or must presume the
information was unfavorable to” Postle, or (c) “dismiss the
action or ender a default judgment.”

Rule 37(e)(2).

Though SilkRoad requests the most severe of these
sanctions, the court is disinclined to dismiss Postle’s claim or
to enter default judgment against him on SilkRoad’s
counterclaims.

The court will, however, presume that the

20

evidence deleted from the Dell laptop was unfavorable to Postle
and will instruct the jury at trial that it may presume
likewise.

The court defers composing the specific wording of

those jury instructions until the time of trial.43
The court also finds it appropriate for Postle to bear a
portion of SilkRoad’s costs and attorneys’ fees incurred in
bringing and prosecuting this motion.

Because SilkRoad’s motion

bore merit with respect to one-third of the devices from which
it alleged that Postle deleted information, Postle shall bear
one-third of SilkRoad’s reasonable costs and attorneys’ fees
incurred in preparing and filing its papers associated with this
motion and in sustaining its burden at the hearing.

Because the

After the hearing, Postle moved the court “to stay any
Rule 37(e) inferential relief,” requesting, in effect, an
opportunity to (1) conduct further investigation into the
Surface Book and (2) supplement the already voluminous briefing
on this discovery motion in light of the court’s expressed
disinclination to grant the severe sanction SilkRoad requested.
Mot. to Stay (doc. no. 50) ¶¶ 3-4, 10.
43

Postle seems to argue that he focused his opposition to
SilkRoad’s spoliation motion on the more dire of the potential
consequences: default and dismissal. But Postle has been on
notice that SilkRoad’s motion also sought less severe sanctions
and he has had ample time to conduct his investigations and to
address any and all arguments raised by SilkRoad, whether
“primarily,” such as SilkRoad’s request for default judgment, or
“secondarily,” such as its request for lesser sanction. Id.
¶¶ 3, 5. Furthermore, any further investigation into the
Surface Book will not alter the court’s conclusion as to
sanctions appropriate for admitted deletions of evidence on the
Dell laptop. Postle’s motion is denied.

21

work performed by SilkRoad’s expert will also be relevant to its
case at summary judgment or trial, this award does not include
SilkRoad’s expert-related costs.

The parties and counsel are

ordered to confer and agree to the amount represented by this
award.

If the parties, after so conferring in good faith,

cannot agree as to the amount represented by this award,
SilkRoad may file an application for one-third of its reasonable
costs and fees, along with any supporting documentation.
Conclusion
Concluding that Postle intentionally failed to preserve
electronically stored information relevant to both his claim and
SilkRoad’s counterclaims, the court GRANTS-IN-PART and DENIESIN-PART SilkRoad’s motion for spoliation sanctions.44

Postle’s

motion to stay this order45 is DENIED.
Consistent with the parties’ joint stipulation,46 the
existing stay of the litigation schedule is lifted and the
parties shall negotiate and jointly submit a proposed, revised
litigation schedule on or before March 5, 2019.

44

Document no. 24.

45

Document no. 50.

See Joint Stipulation Resolving Discovery Dispute (doc.
no. 23) ¶¶ 2-3.
46

22

SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

February 19, 2019

Robert W. Kline, Esq.
Lee C. Douthitt, Esq.
Nolan Goldberg, Esq.
Steven J. Pearlman, Esq.
James F. Scully, Jr., Esq.
Lucy C Wolf, Esq.

23