162) A court could also presume that the lost ESI was unfavorable to the alleged spoliator
4") (Once "a jury is informed [by the court] that evidence has been destroyed, the jury's perception of the spoliator
may be unalterably changed," regardless of the intent of the Court).
Thus, a check-the-box approach may be followed in the event that a party commits one of the enumerated acts of gross negligence within the formulaic roadmap of Pension Committee, the innocent party is strongly incentivized to bring a spoliation motion because the burden rests entirely upon the alleged spoliator
to disprove relevance and prejudice, rather than upon the party bringing the motion to prove these elements.
153) The spoliation doctrine operates as a rebuttable rule, requiring the spoliator
to provide a reasonable explanation for the loss and nature of the evidence.
46) The choice of remedy is often determined by the culpability of the spoliator
--the more culpable the spoliator
, the harsher the penalty.
Sanctions can range from the award of fees and expenses to the adverse party, to exclusion of arguments or evidence, to adverse jury instructions, to outright dismissal of the suit or entry of default judgment against the spoliator
The most popular test requires that the spoliator
(1) have a duty to preserve, (2) have a culpable state of mind, and (3) that the destroyed evidence was relevant to the opponent's claims or defenses.
Notwithstanding the apparent broad application that an independent cause of action would encompass, the Court opined that where the Plaintiff can establish that the spoliator
had a legal or contractual duty to refrain from spoliation, tort liability can arise.
A duty in a third-party negligence spoliation case can be created by the spoliator
's voluntarily undertaking to preserve the evidence and a plaintiff's reasonably and detrimentally relying thereon; by an agreement to preserve between the spoliator
and the plaintiff; or by a specific request to the spoliator
to preserve a particular item," found the court in Johnson v.
Some sanctions are designed to punish the spoliator
One sanction--the imposition of an adverse inference instruction--can create an extremely difficult hurdle for the spoliator
24) A court will impose a sanction for spoliation only after determining (25) "(1) whether the evidence existed at one time, (2) whether the spoliator
had a duty to preserve the evidence, and (3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense.