DeBakker v. Hanger Prosthetics & Orthotics E., 2009 WL 5031319 (E.D. Tenn. Dec. 14, 2009)

Key Insight: Where, to obtain an adverse inference the moving party must establish ?that the party having control over the evidence had an obligation to preserve it at the time it was destroyed,? and where plaintiff failed to establish the individual defendant?s control of the spoliated medical notes and failed to establish the facility?s duty to preserve, court denied plaintiff?s motion for sanctions; in so holding, court declined to find a duty to preserve based on the facility?s own document retention policy and stated, ?the mere existence of a document retention policy does not give rise to a duty to preserve every document generated under that policy. The duty to preserve arises only when a party becomes ?reasonably aware of the possibility of litigation

Nature of Case: Action arising from allegations that defective leg brace caused a fall resulting in permanent injury

Electronic Data Involved: Medical notes

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