Delaware Court focuses on 'unallocated space'.

• Position: E-DISCOVERY - Legislation

In a recent decision, the Delaware Supreme Court indicated that preservation duties may extend to unallocated space on computer hard drives.

Experts said the decision in Genger v. TR Investors, LLC reveals the increasing level of sophistication with respect to identifying and preserving electronically stored information (ESI) that courts expect parties embroiled in litigation to achieve--and that courts nationwide are increasingly imposing a higher level of sophistication and understanding when determining e-discovery obligations.

In Genger, the Delaware Supreme Court upheld severe sanctions against a litigant who knowingly and intentionally spoliated evidence despite a court order. The decision turned on the destruction of unallocated space on a computer hard drive.

Every computer hard drive has "allocated" space that is assigned by the system to hold specific programs, documents, applications, and other data. "Unallocated" space is the part of the hard drive that is considered empty be cause no data has been purposefully stored there.

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However, computers use unallocated space for temporary storage of transient data. So when a file is intentionally deleted by a user, the data is typically not erased from the hard drive. The computer marks hard drive locations associated with the file as unallocated space, which makes the space available to be overwritten with new data. That means files that have been deleted but not yet overwritten with new data can often be recovered using forensic technology.

In Genger, however, the defendant intentionally wiped the unallocated space of a relevant hard drive--making it impossible to recover those files even with forensic methods--despite the Delaware Chancery Court's previous "Status Quo Order" that prohibited both parties from "tampering with or in any way disposing of any related documents, books or records."

The plaintiffs subsequently identified several...