Unfortunately, we periodically see cases of litigation parties fabricating evidence. Fortunately, forensic analysis can frequently unmask such fabrications. The recent case of Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. Dec. 28, 2021) is instructive, because there was a showing of failure to preserve and produce certain evidence, and probable fabrication/alteration of certain emails. However, the Magistrate Judge declined to recommend the sanction of case dismissal, because certain lost evidence ultimately was recovered, and the defendant had not submitted forensic evidence to clearly establish the intentional alteration or fabrication of evidence. The report and recommendation, nevertheless, recommended that the Court exclude from evidence the allegedly altered emails, and require the plaintiff to reimburse defendant’s cost of the forensic exam needed to recover missing emails. You can read the Exterro case law alert for additional detail, complete with my brief “expert commentary.”