Southern District of California Applies Amended FRCP to Sanctions Order and Vacates
The Southern District of California has vacated a sanctions order based upon the recent amendments to the FRCP. In Nuvasive, Inc. v. Madsen Medical, Inc. et. al., Case No. 13-2077 (S.D. Cal., Jan. 26, 2016), Defendants filed a Motion for Sanctions based upon destruction of certain text messages. The court granted the motion in part and ruled that an adverse inference instruction was appropriate.
On December 1, 2015, proposed amendments to the Federal Rules went into effect; thereafter, Plaintiff filed a Motion to Vacate the order granting Defendants’ sanctions motion based upon the new, more stringent sanctions requirements of amended FRCP 37(e). The amended FRCP 37(e) provides that the sanction of an adverse inference instruction is only appropriate when the court finds that the spoliating party intended to destroy evidence to keep the other party from using it at trial. The court found that in ruling on Defendants’ Motion originally, it did not rule that Plaintiff engaged in intentional spoliation; the original ruling merely found that Plaintiff failed to enforce compliance with a litigation hold.
Although the order was entered prior to the rule’s amendment, the court found that the amendment did apply to trial. Since the adverse inference instruction had not yet been given to the jury as trial had not yet commenced, the court determined that the amendments did apply. Defendants argued that application of the amended rule was neither just nor practicable, as required for retroactive application; however, the court stated that there was no prejudice to Defendants, and that because trial was occurring after the effective date of the amendments, they apply, whether that is “good luck” for Plaintiff or not. The court ruled that the parties could present evidence to the jury regarding loss of ESI, but it granted Plaintiff’s motion and vacated the sanctions order.