Listen to this article
A Business Court judge has decided not to hold a defendant in criminal contempt for violating a forensic review order.
The plaintiff company filed a motion to hold the defendant in contempt of court. According to the plaintiff, the defendant attempted to evade a court-ordered forensic examination of his computer.
“The forensic review order required [the defendant] to provide Axis [Discovery, LLC] with, or access to, all Accounts and Devices within his possession, custody, or control. [The defendant] failed to comply in multiple independent respects,” Judge Curt A. Benson found.
“The contempt alleged in this matter is criminal, not civil,” the judge noted.
“Criminal contempt is a serious crime. It is a violation of the law, punishable by fine or imprisonment or both. Because it is a crime, [the defendant] is afforded certain, though not all, of the procedural protections that attend a traditional criminal prosecution. He is entitled to the presumption of innocence. In addition, in this criminal contempt proceeding, the plaintiff must present clear and unequivocal evidence establishing that [the defendant’s] noncompliance was deliberate and willful. As in all criminal matters, the burden of persuasion rests on the plaintiff to prove the charge beyond a reasonable doubt,” Benson pointed out.
“[The defendant’s] conduct throughout this litigation is seriously suspicious and has raised serious concerns. Were the applicable burden of persuasion the ordinary civil standard, proof by a preponderance of the evidence, the Court would likely have found him in contempt. A finding of criminal contempt, however, is a matter of far greater consequence; it constitutes a criminal conviction. On the record before it, the Court cannot conclude beyond a reasonable doubt that [the defendant’s] actions were undertaken with the deliberate intent to obstruct or subvert the judicial process,” Benson stated.
“This is not to say that discovery sanctions may not be in order. This order is limited to the question of contempt of court. Whether [the defendant] should be sanctioned under the court rules is not before the court,” he added.
The nine-page decision is Storage Control Systems, Inc. v. Johnson; MiLW No. 10-110373.
