While there should be no question that there may be serious consequences for destroying evidence subject to legal preservation obligations, there are no bright lines showing how specific instances of spoliation map to specific sanctions. A recent decision from the U.S. District Court for the Southern District of New York demonstrates this point starkly. In Sekisui Am. Corp. v. Hart, the court declined to issue an adverse inference even though the plaintiff deleted “the entire active email folder of an important witness—perhaps the key witness—at a time when [plaintiff] obviously knew that it might commence a lawsuit.”
The allegations trace events starting with the 2009 acquisition by the plaintiff of a company controlled by the defendants, the Harts. Mr. Hart was kept on as CEO, but in late 2010, the plaintiff fired Hart. It warned him of its intention to seek legal redress against him based on allegations of wrongdoing associated with the sale of the business.
The court noted that relevance of the lost ESI and resulting prejudice to defendants were preconditions to an adverse inference. Unfortunately for the defendants and many other parties who have found themselves on the short end of the spoliation stick, there is an inherent difficulty in demonstrating the relevance of information that has been destroyed. This type of relevance or prejudice must be demonstrated by what still exists, a challenge that cannot always be surmounted.
Ruminating on the potential relevance of the lost emails, the court suggested that there were some respects in which they could have been relevant and others in which they could not have been. The court focused instead on the steps that plaintiff took to try to ameliorate any prejudice from the spoliation, steps which were ongoing and had already resulted in the recovery of 36,000 emails to or from Hart. Finally, the court pointed out that the defendants were unable to show or “even describe” any relevant emails that were not produced. No adverse inference instruction would be ordered.