Adverse Inference Instructions

News & Analysis as of

NYCAL Presiding Judge Rules Manufacturer Should Have Reasonably Anticipated Asbestos Litigation 10 Years Before First Lawsuit

On November 5, 2015, Judge Peter H. Moulton, presiding judge over the New York City Asbestos Litigation (NYCAL), ruled in Warren v. AmChem Products, et al., 190281/2014, that J-M Manufacturing Company, Inc., was subject to...more

The Top Ten Things Every Commercial Litigator Must Know About the Fifth Amendment

Invoking the Fifth Amendment privilege is not just for scenes from Law & Order or Better Call Saul. These days commercial cases, especially those involving individual defendants, are commonly filled with claims that have...more

The E-Discovery Digest - October 2015

In This Issue: - Attorney-Client Privilege/Work Product Decisions: ..Decisions Protecting Against Disclosure ..Decisions Ordering Disclosure Other - Spoliation Decisions: ..Spoliation Sanctions...more

Proposed Changes to Federal Rules of Civil Procedure for ESI

With the widespread use of electronic communication methods, discovery is often the most onerous, time-consuming and costly aspects of litigation. Case law has established that a party has a duty to preserve information when...more

Failure to Engage in Basic Litigation Hold Results in Sanction (California)

HM Electronics, Inc. v. R.F. Technologies, Inc., 2015 WL 4714908 (S.D. Cal. Aug. 7, 2015) - In this trademark infringement case, the plaintiff claimed that the defendants interfered with the plaintiff’s prospective...more

Court Allows Adverse Inference Instruction for Failure to Preserve Text Messages

On July 22, 2015, the District Court of the Southern District of California granted in part a motion from Defendants to give an adverse inference instruction to a jury regarding text messages from employees that were not...more

Failure to Prepare for Litigation Results in Adverse Inference Instructions (California)

NuVasive, Inc. v. Madsen Med., Inc., 2015 WL 4479147 (S.D. Cal. July 22, 2015). In this conspiracy theory case, the defendants filed a motion for sanctions against the plaintiff, alleging that the plaintiff engaged in...more

The 5th Amendment In Civil Practice: 3 Big Considerations

The right to remain silent and not testify at your own criminal trial is well known within the legal community and among the public. A defendant “taking the fifth” has been depicted in movies and television shows, and...more

Gross Negligence in Destruction of Attorney Computer Leads to Adverse Inference Sanction (New York)

Dorchester Fin. Holdings Corp. v. Banco BRJ S.A., 2014 WL 7051380 (S.D.N.Y. Dec. 15, 2014). In this contract case, the plaintiff alleged a contract with the defendant, who disputed the authenticity of the contract and...more

Jan. 26 at the Faruqi sex harassment trial: NSFW!

PARENTAL ADVISORY: This is testimony in a sexual harassment case, so it’s necessarily NSFW (Not Suitable For Work. Unless you’re an employment lawyer or HR professional, in which case it’s AIADW (All In A Day’s Work).)...more

Bad Faith Spoliation of Audio Data Results in Adverse Inference Instruction (New York)

Novick v. AXA Network, LLC, 2014 WL 5364100 (S.D.N.Y. Oct. 22, 2014). In this contract dispute case, the plaintiff made a motion for sanctions under Rule 37(b)(2) requesting the court strike the defendants’ answer and...more

Defendant’s Gross Negligence Leads to Adverse Inference Instruction (New York)

Riley v. Marriott Int’l, 2014 WL 4794657 (W.D. N.Y. Sept. 25, 2014). In this personal injury case, the plaintiffs sought video surveillance and “sweep logs” after one of the plaintiffs slipped and fell in the...more

Pursuit of a “Smoking Gun” May Be a Recipe for Disaster

In the U.S District Court for the Northern District of Illinois, Judge Matthew F. Kennelly recently held that plaintiffs alleging price-fixing in the text messaging market were not entitled to an adverse inference after...more

Plaintiffs’ Attempt to Conceal Certain Text Messages Backfires (Puerto Rico)

Calderon v. Corporacion Puertorriquena de Salud, 2014 WL 171599 (D. P. R. Jan. 16, 2014). In this employment law case, the plaintiffs only produced a portion of the demanded text messages during discovery, claiming the...more

Sanctions ordered against business for unintentional failure to protect evidence in anticipation of litigation

Following a broadening trend, the U.S. District Court for the Southern District of California recently held that a party is subject to sanctions – including an adverse inference instruction at trial – for negligently failing...more

Lackluster Retention Policy Leads to Spoliation Sanctions (California)

Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, 2013 WL 6159177 (S.D. Cal. Nov. 25, 2013). In this patent and trademark infringement case, the plaintiffs sought sanctions for the defendants’ alleged spoliation and...more

The Dog Ate My Evidence: Document Destruction Policies And The Duty To Preserve

In This Issue: - The Duty to Preserve ..What triggers the duty to preserve? ..Who has a duty to preserve? ..What is the scope of the duty to preserve? - Litigation Hold Notices - Potential...more

Top 5 Ediscovery Case Summaries - November 2013: New York: Court Unconvinced that Plaintiff Did Not Anticipate Litigation, Orders...

SJS Distrib. Sys. v. Sam’s East, Inc., 2013 WL 5596010 (E.D.N.Y. Oct. 11, 2013). In this breach of contract case, the defendant sought sanctions against the plaintiff. The defendant claimed that over 150 relevant...more

Top EDiscovery Case Summaries - October 2013: New York: Court Allows Presumption of Prejudice, Overturns Previous Order Denying...

Sekisui Am. Corp. v. Hart, 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). In this case, Judge Shira Scheindlin reversed an earlier order that denied spoliation sanctions for the plaintiffs’ deletion of ESI. The underlying breach...more

Sekisui Am. Corp. v. Hart: Judge Scheindlin’s Latest Footprint in Spoliation Case Law – Part 1

Judge Shira Scheindlin’s latest opinion, Sekisui v. Hart, marks a major development for the latest footprint in spoliation case law and is sure raise eyebrows among federal rule makers tasked with reworking Federal Rule 37....more

Top 5 Ediscovery Case Summaries – August 2013: Pennsylvania - Proportionality Must Be Considered for Spoliation Sanctions

PTSI, Inc. v. Haley, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013). In this employment law case, the plaintiff appealed a trial court’s denial of motion for sanctions against the defendants who allegedly erased...more

What Is The Difference Between An Adverse Sanction And An Adverse Instruction?

In the world of discovery, including e-discovery, the production of evidence at trial is necessary to prove or defend a case....more

Top 5 Ediscovery Case Summaries – July 2013: Illinois - Sanctions Granted for Reckless Spoliation of Data

Pillay v. Millard Refrigerated Serv., Inc., 2013 WL 2251727 (N.D. Ill. May 22, 2013). In this Americans with Disabilities Act case, the plaintiff sought sanctions in the form of an adverse jury instruction for the...more

Top 5 Ediscovery Case Summaries – July 2013: Illinois - Sanctions Granted for Reckless Spoliation of Data

Pillay v. Millard Refrigerated Serv., Inc., 2013 WL 2251727 (N.D. Ill. May 22, 2013). In this Americans with Disabilities Act case, the plaintiff sought sanctions in the form of an adverse jury instruction for the...more

Top 5 Ediscovery Case Summaries – May 2013: New Jersey - Sanctions Granted for Social Media Spoliation

Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. Mar. 25, 2013). In this personal injury dispute, the defendants sought spoliation sanctions arising out of the plaintiff’s destruction of relevant social media...more

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