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Court Tailors Adverse Inference Instruction to Avoid Improper Juror Speculation

Posted on April 20th, 2016

In Epic Systems Corp. v. TATA Consultancy Services Ltd. et. al., Case No. 14-748 (W.D. Wis., March 23, 2016), Plaintiff sued Defendants for allegedly using its trade secrets and confidential information without permission. During a long and drawn-out discovery period fraught with disputes, the Court fielded numerous discovery Motions including motions to compel, motions for sanctions and a motion for protective order. In the most recent bout of discovery disputes, the Court was faced with another sanctions motion from Plaintiff. The Court found that Defendants had failed to preserve evidence regarding its unauthorized access of Plaintiff’s website, but that Defendants had failed repeatedly to timely produce records. As a result, the Court ordered an adverse inference instruction.

At a later date, Plaintiff suggested changes to the adverse inference instruction, including stating not that Plaintiff contends that Defendants had one time possessed evidence of their wrongful conduct, but that evidence had been introduced regarding same. On April 1, 2016, the Court overruled this request, but the Court did agree to add language that the jury may take Defendants’ actions as a whole. Plaintiff also objected to certain language in the instruction about inferences a jury could make regarding destruction of evidence, asserting that they are not included in the 7th Circuit’s pattern jury instructions. The Court disagreed, holding that although Defendants’ actions were egregious enough to warrant the instruction, the instruction still needed to safeguard against the jurors drawing unreasonable inferences and “improperly speculating.”  The Court thus overruled the requested change.

ILS – Plaintiff eDiscovery Experts

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