Electronic Discovery Law

Posted at 12:55 PM on December 19, 2005 by K&L Gates

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.

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