Spoliation, Hard-Drive Failure and Schrödinger’s Cat

As with any growing service, issues that were not even on ones radar suddenly begin popping up in unpleasant ways.

Computer hardware, like any machine, is going to fail or otherwise become compromised in terms of functionality. Hard drives in storage, ones that worked perfectly well a year ago, decide to no longer even spin, even though stored in their laptop and it, in turn, stored in an antistatic bag with desiccants. On other occasions, laptops arrive, their drives imaged, and then fail to properly boot. Perhaps some memory went bad en route or some evil digital gremlin decided to ruin an otherwise normal acquisition.

In some ways, this is a bit like the paradox of Schrödinger’s Cat. Was the drive dead or alive; or, was it both in that it did successfully imaged, but then failed to boot once back in its resident computer. An amusing thought on one hand, but dreadfully serious when the non-booting PC belongs to the opposing party.

The bottom line is that you, the third-party provider, may be looking at a situation that implicates some form of spoliation at worst – the destruction of data. Less serious issues are the costs to bring a non-functioning device back on line (and seemingly always in a time-constrained fashion.)
One change we are implementing, when the opportunity exists, to ensure we are starting to work on an uncompromised piece of hardware, is to have the user boot the PC first. Booting through to the login screen, not simply waiting for the splash screen, and then shutting down the machine is a needed confirmation. Obviously, this is neither appropriate nor needed in a criminal case where the “People” take the assets and have few if any worries about necessarily returning a functioning system. This is not the case with civil matters; if the “patient” dies in your lab, it is on your dime to bring that hardware back to a fully functioning state. And, this is only right; a client simply wants their machine back and working.

Other options could include adding contract language to keep the monkey off your back, should something “go south” during an otherwise proper acquisition. Or, perhaps receiving some type of affirmation from opposing counsel that the PC worked in their presence would add some comfort to the downside of receiving a DOA system. This will be an evolving issue and, hopefully, one that does not show an increasing frequency of occurrence.