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Permissive Adverse Inferences for Missing Evidence: Sanctions or Mere Jury Instructions?

Posted on September 16th, 2013

A theme throughout our plaintiff blog about electronic discovery is that adverse inference instructions are commonly used as sanctions for discovery abuses. But can they be used in other ways? What if it is not a sanction, but a mere jury instruction?

That is the case in Mali v. Federal Insurance Company, 2013 WL 2631369 (C.A.2 (Conn.)), where a plaintiff in an insurance dispute did not provide a photograph that may, or may not, have ever existed. The court issued an adverse inference instruction regarding the possibly non-existent photo, and the plaintiff appealed after the jury found against her claim.

The court denied the plaintiff’s appeal and noted that there are differences regarding adverse inference instructions used as sanctions, and adverse inference instructions that are mere jury instructions regarding circumstantial evidence. The language of the instruction gives insight into why this instruction was not used as a sanction, as it requires the jury to first find:

  1. Defendant proved that the photograph existed;
  2. The photograph was in the exclusive possession of plaintiff; and
  3. The non-production of the photograph was not adequately explained.

Only if the jury makes all three findings, then it may infer that the photograph would be adverse to the plaintiff (instruction paraphrased). Also called a “permissive” adverse inference, as opposed to a “mandatory” adverse instruction, it was not being used as a sanction and therefore, the court was not required to make any findings prior to allowing such an instruction. The court explains that this permissive adverse inference instruction was simply to explain to the jury how it should consider circumstantial evidence.

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