July 1, 2010
Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys’ Fees and Costs Ordered as Sanction for Failure to Preserve
Courtesy of the Electronic Discovery Law blog
Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D. Colo. June 15, 2010)
Finding "willful" spoliation of 43 hard drives "in the sense that Plaintiff was aware of its responsibilities to preserve relevant evidence and failed to take necessary steps to do so", a special master ordered a jury instruction which allowed the jury to infer that the destroyed evidence was unfavorable to plaintiff and for the parties to split the cost of defendants' litigation of the spoliation issue. Upon a motion to modify the order, the magistrate judge affirmed the imposition of the jury instruction, but found plaintiff should pay all of defendants' reasonable expenses and ordered payment of $89,365.88.
The blog post with link to a copy of the order is here