Tag:Spoliation

Key Insight: Addressing loss of cellular phone(a tangible thing) belonging to officer involved in off-duty traffic accident despite a letter from plaintiff specifically requesting preservation and providing notice of imminent litigation, court found the city was at least grossly negligent in its failure to preserve and that Plaintiff was prejudiced as a result but fell short of finding that the loss was the result of bad faith and ordered production of documents previously withheld under claim of privilege and that the jury would be instructed that it may make ?any inference they believe appropriate in light of the spoliation?

Nature of Case: Traffic accident

Electronic Data Involved: Cellular Phone

Key Insight: Where individual Defendant informed his family that litigation related emails were to be preserved, but where at least three of eight ordered to be produced were lost, perhaps when Defendant?s wife transferred her emails to a new App, court found Defendant?s effort was ?grossly deficient? noting that defense counsel and Defendant had failed to impress upon the family the significance of the emails; addressing question of an appropriate sanction, Court cited Residential Funding Corp, 306 F.3d 99 (2d Cir. 2002), and ordered a ?permissive adverse inference? and payment of Plaintiff?s attorney?s fees and costs incurred in pursuing the issue

Electronic Data Involved: Emails from account used by multiple family members

Key Insight: Where trial court granted a motion for spoliation sanctions and struck all of Defendant?s pleadings and ordered an adverse inference instruction, court of appeals took up the petition for a writ of mandamus and, addressing the standards for spoliation sanctions in detail, upheld the trial court?s finding that a duty to preserve the at-issue video showing the circumstances surrounding the underlying industrial accident arose from the date of the incident in light of the facts and circumstances of the case and that Defendant breached that duty to preserve through ?willful blindness? by failing to prevent the automatic overwriting of the video despite viewing the video, allowing Plaintiff to view the video while in the hospital, and relying on the video to reconstruct the accident and conduct ?experiments?; regarding the sanctions imposed, the appellate court concluded that the adverse inference was appropriate because of the direct relationship between the loss and the instruction and where the instruction was not excessive in light of the unique nature of the evidence; court granted petition, however, as to order to strike pleadings

Nature of Case: Industrial accident resulting in injuries

Electronic Data Involved: Video of underlying accident