Court Provides Detailed Analysis of Law of Spoliation, Orders Adverse Inference Instruction, Monetary Sanctions for Intentional Spoliation of ESI

Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010)

For intentional spoliation, the court declined to order terminating sanctions but ordered an adverse inference instruction and for defendants to pay plaintiff’s attorneys fees and costs.

In this litigation arising from accusations of misappropriation of trade secrets, violation of non-compete agreements, and related claims, plaintiff accused defendants of spoliating relevant evidence, including electronically stored information (“ESI”).  The court found that defendants had indeed participated in intentional spoliation of evidence, including failing to preserve relevant ESI, manually deleting ESI, and destroying or giving away laptops containing relevant ESI, among other things.  The court nonetheless declined to grant plaintiff’s request for terminating sanctions because plaintiff was unable to show a sufficiently high degree of resulting prejudice.  Specifically, the court found that because defendants had produced a large volume of evidence despite their spoliation of other ESI, because plaintiff had obtained some of the deleted evidence from other sources, and because evidence revealed that some of the deleted records would have been favorable to defendants, the resulting prejudice was “far from irreparable” – the necessary showing to justify terminating sanctions:  “The sanction of dismissal or default judgment is appropriate only if the spoliation or destruction of evidence resulted in “irreparable prejudice” and no lesser sanction would suffice.” [Citation omitted.]

Accordingly, the court ordered an adverse inference instruction to be given to the jury.  The instruction would allow the jury to determine whether the destruction was intended to prevent the use of the destroyed evidence at trial and, if so, would allow the jury to further determine whether to infer that the content of the deleted evidence would have been unfavorable to the defendants.  The court also ordered monetary sanctions and ordered defendants to pay plaintiff’s reasonable costs and attorney’ fees “required to identify and respond to the spoliation.”

Although relatively straightforward in its facts (at least those surrounding defendants’ spoliation), the court’s lengthy analysis of “the framework for analyzing spoliation allegations” (the title of section II of the court’s opinion) provides an insightful discussion of spoliation much like that found in the recent opinion from the Honorable Judge Shira Scheindlin in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) and, in fact, specifically remarks upon the analysis of that opinion throughout.  Unlike Judge Scheindlin’s opinion in Pension, though, the facts of this case involve intentional spoliation.  Accordingly, this case provides a unique perspective that makes it well worth the time to read it.

[Note: this opinion also addresses a motion for summary judgment and includes analysis of claim and issue preclusion.]