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Mandatory v. Permissive Adverse Inference Instructions for eDiscovery Spoliation

Posted on April 19th, 2013

Adverse inference instructions are a common tool available to the court as sanctions for electronic data spoliation. However, there are two main types of adverse inference instructions: mandatory and permissive. What is the difference, and how do courts decide which instruction is appropriate?

In our last blog, we discussed the case of Beck v. Test Masters Educational Services, 2013 WL 772879 (D.D.C.), where the defendants experienced a computer crash that wiped out emails that they had a duty to preserve. Although the court found that the crash was not intentional or malicious, it also held that the lack of sufficient response or attempt at recovery constituted a breach of their duty to preserve and ordered an adverse inference instruction.

However, the parties then disagreed on what type of adverse inference instruction was warranted. The lower court ordered a mandatory instruction, that “the factfinder therefore must presume that the evidence contained in those emails would have been favorable to plaintiffs.” [Emphasis added.] The defendants argued a permissive instruction was warranted, which would not require, but only permit the factfinders to presume the destroyed evidence would have been favorable to plaintiffs.

The court noted that case law favors permissive over mandatory instructions, absent special circumstances (although the plaintiffs certainly thought the circumstances of a mysterious computer crash without an attempt at recovery was such a circumstance.) The court noted that their federal district had held that permissive instructions could even be appropriate for non-accidental spoliation.

As the lower court found that the computer crash was not intentional, (although it certainly occurred under suspicious circumstances), the district court held the mandatory instruction was not appropriate and modified the instruction to be permissive.  Despite the permission inference, one would imagine the jury could easily draw the conclusion that the electronic data would have been favorable to the plaintiffs nonetheless.

ILS – Plaintiff Electronic Discovery Experts

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