Smith et. al. v. Slifer Smith & Frampton/Vail Associates Real Estate, LLC, et. al., 2009 WL 482603 (D. Colo. Feb. 25, 2009)
Senior District Court Judge John Kane overruled defendants' objections to Magistrate Judge Michael Watanabe's recommendation in support of an adverse inference instruction against defendants for the willful destruction of data stored on defendants' computers.

Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL 482603 (D. Colo. Feb. 25, 2009)
Plaintiffs, as representatives of an estate, retained defendants, including broker Peter Seibert, to assist in selling a piece of the estate’s property. The property eventually sold, on defendants’ recommendation, for approximately $2.8 million. 83 days later, defendants assisted in reselling the property to a development company for $7.2 million. Plaintiffs’ counsel contacted defendants and informed them he was conducting an investigation into the sale. On November 2, 2006, plaintiffs filed suit alleging inter alia breach of statutory duties, negligence per se, negligent misrepresentation, and fraud. Plaintiffs served discovery requests with specific requests for electronically stored information and for inspection and sampling of certain of defendants’ computers. Defendants’ responses indicated that they had searched three primary sources of potentially responsive documents: Seibert’s old office computer, his home computer, and his laptop. Following plaintiffs’ filing of a motion to compel certain ESI, defendants’ own expert, Ralph Gorgal, reported that Seibert’s computer drives had been analyzed “to determine if secure deletion (wiping) software had been installed.” He concluded that Anti-Tracks, a data wiping program, had been installed on Seibert’s home computer. He further concluded that the Anti- Tracks file was created on August 17, 2006 and last accessed on September 6, 2007 – mere days before copies of Seibert’s hard drives were taken.