Archive: April 13, 2016

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Finding Application of Recently-Amended Rule 37(e) “Neither Unjust Nor Impractical,” Court Imposes Adverse Inference

Finding Application of Recently-Amended Rule 37(e) “Neither Unjust Nor Impractical,” Court Imposes Adverse Inference

Brown Jordan Int’l, Inc. v. Carmicle, Nos. 0:14-CV-60629, 0:14-CV-61415, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016)

In this case, the court heard argument regarding Defendant’s alleged spoliation in October, 2015—before amendments to the Rules of Civil Procedure went into effect—and deferred ruling on the motion until the end of trial.  The amendments became effective “shortly after trial concluded.”  Upon determining that “applying the new version of Rule 37(e) would be neither unjust nor impractical,” the court found that Defendant failed to take reasonable steps to preserve the information at-issue, despite a duty to do so; that the lost information could not be restored or replaced through additional discovery; and that Defendant acted with the intent to deprive Plaintiffs of the information’s use in the litigation.  Accordingly, the court presumed that the lost information was unfavorable to the defendant.  The court also noted that the sanction would be appropriate under prior standards, specifically pursuant to the court’s inherent authority to sanction a party’s bad faith litigation conduct.

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