Post Process

Everything to do with E-discovery & ESI

Case Blurb: Cammarata; The difficulty of proving relevance and prejudice of destroyed documents

Posted by rjbiii on March 29, 2010

It is well established that a party seeking the sanction of an adverse inference instruction based on spoliation of evidence must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) 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. The “relevance” and “prejudice” factors of the adverse inference analysis are often broken down into three subparts:

(1) whether the evidence is relevant to the lawsuit;
(2) whether the evidence would have supported the inference sought; and
(3) whether the nondestroying party has suffered prejudice from the destruction of the evidence.

Pension Committee recognized the difficulty and potential for unfairness in requiring an innocent party seeking discovery to show that information lost through spoliation is relevant and prejudicial. Those concerns are acute when the party seeking discovery cannot replace or obtain extrinsic evidence of the content of deleted information. But in many cases–including the present case–there are sources from which at least some of the allegedly spoliated evidence can be obtained. And in many cases–including the present case–the party seeking discovery can also obtain extrinsic evidence of the content of at least some of the deleted information from other documents, deposition testimony, or circumstantial evidence.

Courts recognize that a showing that the lost information is relevant and prejudicial is an important check on spoliation allegations and sanctions motions. Courts have held that speculative or generalized assertions that the missing evidence would have been favorable to the party seeking sanctions are insufficient. By contrast, when the evidence in the case as a whole would allow a reasonable fact finder to conclude that the missing evidence would have helped the requesting party support its claims or defenses, that may be a sufficient showing of both relevance and prejudice to make an adverse inference instruction appropriate.

See case summary here.

Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573, 30-31 (S.D. Tex. Feb. 19, 2010) (referring to Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, No. 05 Civ. 9016, 2010 U.S. Dist. LEXIS 4546, 2010 WL 184312, at *3 (S.D.N.Y. Jan. 15, 2010))

See case Summary for Pension Committee here.

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