In an opinion this morning reversing the conclusions of Magistrate Judge Maas, Judge Scheindlin ordered an adverse jury instruction against a party that, after notice of potential litigation, allowed email and other electronic evidence to be destroyed, notwithstanding that there may have been an innocent explanation for the destruction:
The Magistrate Judge concluded that the destruction of Hart’s ESI “may well rise to the level of gross negligence,” but apparently decided that such destruction was not willful because “there has been no showing that Taylor directed [the emails’] erasure for any malevolent purpose.” Because Hart’s ESI was destroyed at the direct request of an ADI employee after the duty to preserve had attached and the law does not require a finding of malevolence to constitute willfulness in the context of spoliation, I find this conclusion contrary to law and clearly erroneous . . . . The law does not require a showing of malice to establish intentionality with respect to the spoliation of evidence. In the context of an adverse inference analysis, there is no analytical distinction between destroying evidence in bad faith, i.e., with a malevolent purpose, and destroying it willfully. That Sekisui provides a good faith explanation for the destruction of Hart’s ESI – suggesting that Taylor’s directive was given in order to save space on the server – does not change the fact that the ESI was willfully destroyed.