This is a case of egregious destruction of evidence by a party to litigation. The court writes:
“West’s false affidavits and false deposition testimony, particularly combined with the false affidavits submitted by Rios and Blum (see filing nos. 121-3, ¶¶ 4-5; 121-4, ¶¶ 4-5), West’s conduct of throwing a computer server in a dumpster while motions for discovery of electronic information were pending, and his removal of computer hard drives and servers from Bertke’s possession immediately after the court ruled that Bertke could be subpoenaed to produce these drives, provide ample evidence that Defendants intentionally submitted false evidence and testimony in bad faith, committed fraud on this court, and intentionally destroyed evidence with a desire to suppress the truth in this case.[27] Such conduct warrants the imposition of an adverse jury instruction. See Stevenson, 354 F.3d at 750 (finding the power to give an adverse jury instruction is support by Fed. R. Civ. P. 37 or the “court’s inherent power”). Specifically, the defendants’s discovery abuse warrants instructing the jury that it may assume that the contents of the discarded server would have been adverse, or detrimental, to Defendants’ case.”
Comment:
The court chose an old-fashioned discovery sanction – the adverse inference, which allows the jury to conclude that the contents of the server would have been detrimental to defendant’s case.
Edward X. Clinton, Jr.
www.clintonlaw.net
fedcivilprocedure 