The Adjudication of Adverse Inference Instructions as Spoliation Sanctions: An Update

8 Aug 2017

adverse inference instructions as spoliation sanctionsLast year, we published a newsletter that provided practitioners a survey of case opinions re how courts adjudicated applications for adverse inference instructions sanctions based upon accusations of ESI/discovery spoliation. Since that newsletter was posted, additional opinions relative to this topic have issued, and so ILS is providing you this update.  Below are summaries of these more recent case opinions, where the court imposed sanctions of adverse inference instructions after deciding a party spoliated ESI, video and other data.

Recent Cases Where Courts Ordered an Adverse Inference Instruction:

  • United States ex. rel. Scutellaro v. Capitol Supply, Inc., Case No. 10-1094 (District of Columbia, Apr. 19, 2017). Defendant failed to preserve electronic evidence that was “case dispositive.” Plaintiff alleged this was in violation of Defendant’s regulatory and contractual obligations and requested an adverse inference instruction. Although the court held that FRCP 37 did not apply, as the actions were outside the scope of the rule, the court agreed Defendant violated its regulatory and contractual obligations. Therefore, the court ordered an adverse inference instruction as sanction under the court’s inherent powers.
  • Martinez v. Salazar et. al., Case No. 14-534 (D. N.M., Jan. 26, 2017). In a case alleging police brutality, Plaintiff sought electronically stored information from an officer’s taser. The taser was deemed “lost,” and the custodian of records testified that although the city received a litigation hold letter, he himself never saw it. The court held this was gross negligence, and it ordered an adverse inference instruction as well as attorney’s fees to Plaintiff.
  • Cahill v. Dart et. al., Case No. 13-361 (N.D. Ill., December 2, 2016). In another case regarding alleged police misconduct, Plaintiff sought video surveillance footage of the incident. Plaintiff was criminally accused of dropping a package of drugs on the floor, and sought the video as he believed it would exonerate him. The police claimed the video had been destroyed, but a technician retrieved an edited portion of the video. The video did not show Plaintiff dropping the package, as the cut video started with the package already on the floor. Plaintiff filed a motion for sanctions for spoliation of the video. The court agreed, although it would allow the police officers to testify they saw Plaintiff drop the package. However, an adverse inference instruction would be given to the jury to decide whether the destroyed video demonstrated the requisite bad faith intent.
  • Oorah, Inc. d/b/a Cucumber Communications v. Covista Communications, al., Case No. 652316/2011 (Supreme Court of New York, New York County, Aug. 23, 2016). In this New York state commercial litigation alleging breach of contract, Plaintiff filed a motion for spoliation sanctions due to Defendant’s alleged destruction of ESI from several servers. New York law allowed for sanctions in this case, as Defendant made no argument that it did not have a duty to preserve this ESI, it had failed to preserve the evidence, and the court found the intent to be grossly negligent if not intentional. The court presumed relevance of the ESI and ordered an adverse inference instruction.

Speak to ILS About the ESI Discovery Issues as Early as Possible in Your Case

Plaintiff attorneys can reduce the risk of potential spoliation of ESI by Defendants by speaking to the electronic discovery experts at ILS as early as possible. Our team of attorney consultants, forensics experts and IT specialists assist plaintiffs’ counsel in developing strategies for litigation holds, discovery requests, computer forensics and any ESI-related issue in the case. The earlier you speak to us, the better prepared you will be for anything that may arise.

Unlike other eDiscovery vendors, the team at ILS only serves the plaintiff’s bar in class action cases, multidistrict litigation, mass torts and other cases. This, among other benefits, avoids potential conflicts of interests. To find out more, call us directly at (888) 313-4457 or via email at [email protected].