Phil Cannella Lawsuit – Phil Cannella Lawsuit Victorious In Spoliation Charges, Part 1 – Phil Cannella Lawsuit


Phil Cannella Lawsuit, Phil Cannella Reviews, Phil Cannella Complaints

Phil Cannella, as the accomplished professional he is, so often provides an educational setting to all of his observations. Not only does he seek to educate those who come to his weekly seminars but he seeks to share his knowledge in other areas and sectors of life graciously with colleagues, clients and acquaintances. As a very worldly man, Phil Cannella has learned so much not just in the insurance and financial sectors of life but in business, in law, etc. It is one of his basic beliefs to share the wealth of his knowledge with others.

Just such an area of life is the subject of law, which to many is a very foreign and apparently hard to understand area often left to expensive attorneys to tend do who have spent years and years and years getting trained on. Not to mention the fact that law itself has so many specializations it is no wonder these people charge several hundred dollars an hour for their advice.

This is another reason why Phil Cannella is happy to share what he has learned through the course of his business career in working with attorneys throughout the country in order to protect his own interests. One such matter concerns what is known in law as the “spoliation” of evidence.

By definition, “The spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding. Spoliation has two possible consequences: in jurisdictions where the (intentional) act is criminal by statute, it may result in fines and incarceration for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference.

“The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party’s destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding: the finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party.

“The theory of the spoliation inference is that when a party destroys evidence, it may be reasonable to infer that the party had “consciousness of guilt” or other motivation to avoid the evidence. Therefore, the factfinder may conclude that the evidence would have been unfavorable to the spoliator. Some jurisdictions have recognized a spoliation tort action, which allows the victim of destruction of evidence to file a separate tort action against a spoliator.” http://en.wikipedia.org/wiki/Spoliation_of_evidence

In the course of one of Phil Cannella’s lawsuits he came face to face with an adversary who was guilty of exactly that. She had wiped all computer evidence of any wrongdoing on her part and in the civil case against her she faced sanctions for spoliation. Every single electronic device that she was associated with or that she had used for a specific purpose had over the course of time been made completely inaccessible. Worse, the one computer she had in her position through the course of litigation, just days before a forensic examination was set to be made, had been completely wiped. By this I mean the defendant had utilized two different types of wiping software in order to erase all the files on her computer and after that she reloaded the Windows Operating System in order to cover her tracks (or most of them). To put this in perspective, here is a very pertinent excerpt on the subject of deliberate software spoliation:

“When a user deletes a file from a computer, the file usually still exists on the physical hard drive and can be recovered. However, there is a thriving software industry that specializes in software that totally erases files. Such software is inexpensive and readily available over the Internet. Users need not be particularly sophisticated to find and use such ‘overwriting’ software.

“In 2003, an Illinois U.S. District Court Judge granted a defendant’s motion for sanctions against the plaintiff and recommended that the case be dismissed with prejudice after it was discovered that the plaintiff had attempted to delete relevant evidence from his computer by running the Evidence Eliminator™ software, which claims to defeat forensic analysis software.

“Operating systems allow users to divide disks into sections called partitions. Software to create and manage these partitions comes with the operating system itself, and numerous other versions of partition-managing software are readily available on the Web. With the user manual for the software at hand, it is easy to create a partition on a drive and make it invisible to ordinary users. As in other scenarios of deception, forensic software bypasses the partition management software and provides information related to all partitions, hidden or otherwise.”

http://www.electronicevidenceretrieval.com/preserving_protecting_evidence.htm

In Part 2 of this article we will take a closer look at what Phil Cannella had to deal with in his lawsuit and the spoliation claims against his adversary.

Phil Cannella Lawsuit, Phil Cannella Reviews, Phil Cannella Complaints