Darren Chaker notes window washing may be harmful to your case. In Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)Where defendants used "Window
Washer" disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed "mass deletions" of electronic files, court found that
defendants' intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff's costs, attorney's fees, and computer expert's fees relating to
motions for sanctions and forensic imaging and recovery of defendants' hard drives; jury trial to proceed solely on issue of plaintiff's damages.
Likewise, in Alexander v. FBI, 188 F.R.D. 111 (D.D.C. 1998), Plaintiffs sued for Privacy Act violations in connection with the FBI's release of certain files to individuals in the White House. Plaintiffs sought restoration and production of email and deleted files from backup tapes and hard drives.The government moved for protective order and submitted declarations of two employees within its Information Systems and Technology Division, which addressed the feasibility and burdensomeness of the request. Plaintiffs countered with an unpersuasive declaration of a consultant who failed to provide any educational background or information
qualifying him to comment on the system of computers and email specific to the defendant. The court rejected plaintiff's request that all deleted files and emails be restored, and directed the parties to meet and confer about "targeted and appropriately worded searches of backed-up and archived email and deleted hard drives for a limited number of individuals." 188 F.R.D. at 117.
Nonetheless, Defendant not required to completely restore all email and deleted files; plaintiffs to pursue discussion with defendants regarding targeted and appropriately
worded searches of backed-up and archived email and deleted hard drives for a limited number of individuals; scope of plaintiffs' Fed. R. Civ. P. 30(b)(6) notice narrowed.
Irrespective as how court will deal with these issues, the theme will follow: counter forensaics methods to destoy electronic evicence will evolve while the courts take things on a case by case basis. In short, as the law developes, so should determing proper sanctions since itis so expensive to try to play catch up.