Int?l Bus. Machs. Corp. v. BGC Partners, Inc., No. 10 Civ. 128(PAC), 2013 WL 1775373 (S.D.N.Y. Apr. 25, 2013)

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s failure to collect information regarding its utilization of the at-issue software, the court refused to grant spoliation sanctions upon finding that defendant did not have an obligation to compile information related to its use of the at-issue software where such information was not typically collected in the usual course of business and where parties are only required to produce documents that exist and have no obligation to create documents to support their adversary?s theory of the case; where plaintiff sought spoliation sanctions for defendant?s migration from the at-issue software to another, the court declined to impose sanctions citing the fact that plaintiff had itself instructed defendant to destroy all copies of the at-issue software and that plaintiff failed to present any evidence that it had requested defendant halt its migration prior to filing a motion for sanctions

Electronic Data Involved: ESI

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