Post Process

Everything to do with E-discovery & ESI

Archive for September 3rd, 2007

Case Blurb: Easton Sports; Closing Yahoo! account violated duty to preserve

Posted by rjbiii on September 3, 2007

Defendant alleged to have stolen trade secrets before changing jobs found by court to have violated the duty to preserve relevant evidence after he closed his Yahoo! account, causing the destruction of all e-mails in that account and the loss of messages he had sent to that account while employed by plaintiff. The magistrate recommended that the Court allow:

  • Plaintiff to present evidence of Defendant’s failure to preserve the documents to the jury;
  • An instruction to the jury that it may presume, based upon the spoliation, that the evidence destroyed would have been favorable to Plaintiff;
  • Plaintiff’s counsel to argue in favor of the negative inference.

Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. 2006).

Posted in 6th Circuit, Case Blurbs, Data Management, Document Retention, Duty to Preserve, E.D. Mich., Magistrate Judge Donald A. Scheer, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Residential Funding Corp.; Finding that party acted with gross negligence or in bad faith sufficient that missing evidence harmful to movant

Posted by rjbiii on September 3, 2007

The district court’s finding that party acted with gross negligence or in bad faith with respect to discovery obligations is ordinarily sufficient to support finding that missing or destroyed evidence would have been harmful to the party. Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002).

Posted in 2nd Circuit, Adverse Inference, Case Blurbs, Judge Jose A. Cabranes | Leave a Comment »

Case Blurb: Residential Funding Corp.; Negligence sufficient to establish culpable state of mind element for adverse inference instruction, 2nd circuit

Posted by rjbiii on September 3, 2007

The “culpable state of mind” factor required for adverse inference instruction based on breach of discovery obligation may be satisfied by showing of negligence, rather than bad faith or gross negligence. Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002).

Posted in 2nd Circuit, Adverse Inference, Case Blurbs, Judge Jose A. Cabranes | Leave a Comment »

Case Blurb: Alcoa, Inc.; Elements to establish need for adverse inference instruction, 5th Circuit

Posted by rjbiii on September 3, 2007

A party seeking the sanction of an adverse inference instruction based upon spoliation of evidence must establish these elements:

  • The party in control of the evidence had an obligation to preserve it at the time it was destroyed;
  • The records were destroyed with a “culpable state of mind;”
  • The destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Additionally, the Fifth Circuit only permits an adverse inference sanction against a destroyer of evidence upon a showing of “bad faith” or “bad conduct.”
For the spoliator to have a culpable state of mind, it must act with fraudulent intent and a desire to suppress the truth. Such a state of mind is not present where the destruction is a matter of routine or where employees have simply deleted emails b/c they had no legitimate business reason. When evidence is destroyed in bad faith, that fact alone is sufficient to demonstrate relevance. However, when the destruction is negligent, relevance must be proven by the party seeking sanctions. Some jurisdictions outside of the 5th Cir. merely require a “gross negligence standard, rather than the “bad faith” standard. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La).

Posted in 5th Circuit, Adverse Inference, Case Blurbs, Duty to Preserve, M.D. La., Magistrate Judge Christine Noland, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Ed Donnelly Ents., Inc.; Relationship between adverse inference instruction and records practices examined

Posted by rjbiii on September 3, 2007

Plaintiff’s perception of the deficiencies of defendants’ electronic record-keeping is irrelevant to the request for an adverse inference instruction for the intentional loss or destruction of records after defendants received notice of this litigation and is not a basis for inferring that defendants intentionally lost or destroyed [the document] at issue. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio).

Posted in 6th Circuit, Adverse Inference, Case Blurbs, Data Management, Duty to Produce, Magistrate Judge Norah McCann King, S.D. Ohio, Sanctions | Leave a Comment »

Case Blurb: Ed Donnelly Ents., Inc.; Denying request for Adverse Inference Instruction

Posted by rjbiii on September 3, 2007

Plaintiffs request for an adverse inference instruction based on defendant’s failure to produce evidence was denied by the court because the destruction of evidence made before notice of litigation did not provide the court with any foundation to infer that the missing evidence was adverse to defendant. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio) (citing Joostberns v. United Parcel Servs., Inc., 166 Fed. Appx. 783, 796 (6th Cir. 2006)).

Posted in 6th Circuit, Adverse Inference, Case Blurbs, Magistrate Judge Norah McCann King, S.D. Ohio | Leave a Comment »

Case Blurb: Alcoa, Inc.; Appropriate situations for issuance of an Adverse Inference Instruction

Posted by rjbiii on September 3, 2007

Typically, the giving of an adverse inference instruction has been upheld where the facts of the case are extreme, such as where the destroyed evidence was the very automobile that was the subject of the products liability action. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La) (citing Concord Boat Corp. V. Brunswick Corp., 1997 WL 33352759 (E.D.Ark. 1997) citing Dillon v. Nissan Motor Co., 986 F.2d 263 (8th Cir. 1993)).

Posted in 5th Circuit, Adverse Inference, Case Blurbs, M.D. La., Magistrate Judge Christine Noland, Sanctions | Leave a Comment »