Electronic Discovery Law
Without Some Evidence That Missing Documents Would Have Been Favorable to Case, Sanctions Not Appropriate
Hamre v. Mizra, 2005 WL 1083978 (S.D.N.Y. May 9, 2005)
In this medical malpractice case, defendants failed to maintain certain documents in the plaintiff's chart, including a vital signs flow chart memorializing, inter alia, the plaintiff's temperature over several days. Plaintiff moved for sanctions, seeking an order striking defendants' answer or precluding defendants from offering testimony on the issue of liability. The magistrate denied the motion, finding that no showing of willful destruction or bad faith had been made, so the extreme sanction requested by plaintiff was not appropriate. The magistrate also concluded that the lesser sanction of an adverse inference instruction was inappropriate. The district court judge upheld the magistrate's order, citing Zubulake v. UBS Warburg LLC, 2003 WL 22410619 (S.D.N.Y. Oct. 22, 2003) and Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2nd Cir. 2002). The court observed that, in order for the sanction of an adverse inference to be imposed, the moving party must present some evidence corroborating its assumption that the missing evidence would have been favorable to its case. Since the plaintiff had failed to put forth any evidence regarding the contents of the destroyed evidence, an adverse inference instruction was not warranted.
K&L Gates includes lawyers practicing out of more than 40 fully integrated offices located in North America, Europe, Asia, South America, and the Middle East, and represents numerous GLOBAL 500, FORTUNE 100, and FTSE 100 corporations, in addition to growth and middle market companies, entrepreneurs, capital market participants and public sector entities. For more information about K&L Gates or its locations and registrations, visit www.klgates.com.
Portions of this Web site may contain Attorney Advertising under the rules of some states. Prior results do not guarantee a similar outcome.
e-Discovery Analysis & Technology group at K&L Gates, offering services related to ediscovery, review of electronic documents, electronic discovery and electronic evidence discovery.
K&L Gates LLP
925 Fourth Avenue, Suite 2900, Seattle, Washington 98104-1158
p. 206.623.7580, f. 206.623.7022