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Damaged Original Disk Did Not Warrant Adverse Inference Instruction for eDiscovery Spoliation

Posted on January 29th, 2014

Never send anything that’s an original without first making a copy. Simple advice, but it still rings true when dealing with electronic data. For a case where a party sent an original disk which got damaged and there was no copy, see Cognex Corp. v. Microscan Systems, Inc. 2013 WL 6906221 (S.D.N.Y. December 31, 2013).

In this patent infringement case, plaintiffs were in possession of an optical disk with software relating to one of the patents at issue. Defendants requested a copy of the disk during discovery, but plaintiffs first shipped the original disk via FedEx to a technical expert. Allegedly, the disk was damaged in transport when the technical expert returned it to plaintiffs and there was no copy of the original.

Defendants sought an adverse inference instruction, attorney fees and a monetary fine as sanction for the spoliation. The court considered the elements when a party requests an adverse inference sanction for spoliation in the Second Circuit case as cited in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2nd Cir. 2002):

1. The party in control of the evidence had a duty to preserve it when it was destroyed;

2. The records were destroyed with a culpable state of mind;

3. The destroyed evidence was relevant to a claim or defense.

While the court agreed that the first element was shown, the court held that failure to make a copy of the original CD was insufficient to infer a “culpable state of mind.” The court recognized that in some cases, the failure to make a copy could constitute a culpable state of mind if the destroyed evidence was shown to be relevant. However, the defendants failed to demonstrate that the destroyed CD would be material to their claim or defense. Therefore, the court denied imposing an adverse inference instruction in the case, as that sanction was deemed “excessive” on these facts. However, the court did impose a sanction of reasonable attorney fees and costs associated with the motion, and imposed a $25,000 fine payable to the Clerk of Court to deter similar types of conduct in the future.

ILS – Plaintiff Electronic Discovery Experts

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