Expert: Too Much Evidence Missing in Zillow Case
April 15, 2016
A forensic expert involved in in Move’s lawsuit against Zillow said in a pre-trial hearing Thursday that actions by the defendants to destroy or withhold evidence is making it significantly harder for Move to argue its case.
The suit, brought by Move Inc. and the National Association of REALTORS®, centers around two former Move executives Errol Samuelson and Curt Beardsley. When they left Move for Zillow in early 2014, Samuelson and Beardsley copied thousands of files from their Move-issued laptops onto USB drives and external hard drives and deleted thousands of texts and e-mails from their business iPhones and iPads. In testimony this week, both men said they were removing personal files before returning their devices to Move, but Move said their actions suggested they were covering up an effort to take confidential documents.
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The King County Superior Court in Seattle ordered a forensic review of all electronic devices in Samuelson’s and Beardsley’s possession to recover documents pertinent to the case. But Byron Lloyd-Jones, who was hired by Move to conduct the forensic investigation, said during the hearing Thursday that he came across data on their computers indicating that other devices were used to transfer, copy, or delete Move files—and those devices haven’t been turned over for review. Without examining those devices, it’s impossible to know the extent of what was affected on Samuelson and Beardsley’s Move-issued computers, he said.
On top of that, Samuelson and Beardsley did not turn over many of the USB drives and hard drives they used to copy files from their laptops, saying they were either lost or damaged. Beardsley destroyed one hard drive, claiming he threw it against a wall when he became frustrated that it wasn’t working. The combination of those missing devices means “there’s just so much we will never know” about what Samuelson and Beardsley did around the time they resigned from Move, he said.
Lloyd-Jones also questioned the measures Samuelson took to erase thousands of documents on his Move laptop. Samuelson previously testified that he wanted to preserve personal files on the computer, so he took it to a shop, had the entire hard drive cloned, deleted his personal files on the clone, and returned the laptop to Move with the cloned drive. He kept the original hard drive with both business and personal files on it.
But Samuelson could have easily used a third-party tool to securely erase whatever files he wanted to and then returned the laptop to Move without cloning the hard drive, Lloyd-Jones said. “It was an unnecessary step,” he added.
The defendants’ lawyers sought to divert from Lloyd-Jones’ testimony by arguing that many of the e-mails and text messages deleted on Samuelson’s and Beardsley’s devices were backed up on other servers—either Move’s or their own. In fact, they’ve turned over many records of recovered messages—and no evidence in the case to date has shown that Move lost any business opportunities due to their actions.
Move says that doesn’t change the fact that Samuelson and Beardsley intended to destroy evidence when they erased the documents. Move and NAR are asking Judge Sean O’Donnell to enter a default judgment against Zillow, arguing a fair trial is harder to get because there are too many lost facts in the case. The case is set to go to trial June 6.
—By Graham Wood, REALTOR® Magazine
Updated: July 18, 2018