By Julia Romero Peter, Esq.
In Research Foundation of State Univ. of New York v. Nektar Therapeutics (N.D.N.Y. May 15, 2013), the court denied Defendant’s motion for an adverse inference instruction and monetary sanctions based on spoliation of evidence. The court applied the following standard: the party seeking the instruction must demonstrate: “(1) a duty to preserve the evidence existed at the time it was destroyed; (2) the evidence was ‘destroyed with a culpable state of mind;’ and (3) the ‘evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.'”
In this contract litigation, Defendant asserted that Plaintiff’s duty to preserve emerged in the middle of 2009 when “it should have known that evidence may have been relevant to future litigation, it was grossly negligent in its efforts to preserve documents, and the spoliated evidence [was] relevant to Nektar’s defense.” With respect to the second prong of the foregoing standard, Defendant argued that Plaintiff’s preservation was “grossly negligent because it failed ‘to timely issue written litigation-hold notices,’ ‘preserve all relevant backup-data,’ and ‘suspend its auto-delete practices.’”
Plaintiff countered that its duty to preserve did not arise until October 2009, its preservation was sufficient and Nektar did not identify any relevant evidence.
The court determined that Plaintiff’s preservation was not “grossly negligent.” It noted that Plaintiff “had in place, since 2001, a comprehensive standard document preservation policy, issued both verbal and written litigation hold notices, preserved backup tapes of emails from before commencement, and confirmed that no custodian had deleted any documents related to this matter.”
The court also found that Defendant’s spoliation motion “failed to meet its burden of establishing the relevance prong.” Defendant was unable “‘to adduce evidence suggesting the existence, let alone destruction of relevant documents.’”