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Adverse Inference Instruction Denied in Breach of Contract Case

Posted on May 13th, 2016

FiTeq, Inc. v. Venture Corp., et. al., Case No. 13-01946 (N.D. Cali., April 28, 2016) is a breach of contract case involving fraud and other business torts. Plaintiff sued Defendants, and Defendants asserted counterclaims against Plaintiff. During the pretrial stage, the parties filed various motions in limine, with Plaintiff filing five and Defendants filing six. One of Plaintiff’s motions was a motion for an adverse inference instruction against Defendants for spoliation of evidence.

Plaintiff asserts that because Defendant’s Executive VP deleted his related emails prior to the termination of an operating agreement between the parties, the jury should receive an instruction that the destroyed evidence was favorable to Plaintiff. Plaintiff also alleged that Defendants’ production of documents that could be recovered was so light that it could be inferred that other documents had been destroyed, as the VP had played an extensive role in the issues that gave rise to the lawsuit.

Defendants argued that they had restored and produced the emails to Plaintiff. They further argued that Plaintiff failed to take any steps to mitigate their injury, as they did not seek to depose the VP. Defendants finally argued that Plaintiff had not shown that it was prejudiced and that it had not shown any intent on Defendants’ part.

The court agreed with Defendants, finding that Plaintiff had failed to meet its burden of showing that other responsive documents once existed and that Defendants had failed to restore and produce the missing items. Therefore, the court denied the motion.

ILS – Plaintiff ESI Discovery Experts

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