Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 19 of 139
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In Pension Committee, the court followed the approach that even for severe sanctions,
relevance and prejudice may be presumed when the spoliating party acts in a grossly
negligent manner. Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. §.,
LLC, No. 05 Civ. 9016, 2010 WL 184312, at *5 (S.D.N.Y. Jan. 15, 2010). The presumption
of relevance and prejudice is not mandatory. Id. at *5. The spoliating party may rebut the
presumption by showing that the innocent party had access to the evidence allegedly
destroyed or that the evidence would not have been helpful to the innocent party. Id. When
the level of culpability is “mere” negligence, the presumption of relevance and prejudice is
not available; the Pension Committee court imposed a limited burden on the innocent party
to present some extrinsic evidence. Id.
The Fifth Circuit has not explicitly addressed whether even bad-faith destruction of
evidence allows a court to presume that the destroyed evidence was relevant or its loss
prejudicial. Case law in the Fifth Circuit indicates that an adverse inference instruction is not
proper unless there is a showing that the spoliated evidence would have been relevant. See
Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 & n.8 (5th Cir. 2005) (holding that an
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See, e.g., Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155–57 (4th Cir. 1995) (holding that an
adverse inference instruction was appropriate because the plaintiff’s expert willfully destroyed parts of a boat
at issue in a products-liability action before the defendant and its experts were able to examine it); Broccoli
v. Echostar Commc’ns Corp., 229 F.R.D. 506, 511–12 (D. Md. 2005) (noting that the defendant did not
preserve vital employment and termination documents, including emails in which plaintiff had made
complaints to his supervisors about being sexually harassed and the internal investigative file into those
complaints, and imposing an adverse inference instruction); GE Harris Ry. Elecs., L.L.C. v. Westinghouse
Air Brake Co., No. 99-070-GMS, 2004 WL 5702740, at *4–5 (D. Del. Mar. 29, 2004) (holding that an
adverse inference was warranted when the defendant deleted relevant emails and electronic files and the
emails the plaintiff was able to recover from other sources were probative of the defendant’s liability).
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