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

Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 20 of 139
adverse inference was not appropriate because there was no evidence of bad faith but also
noting that even if bad faith had been shown, an adverse inference would have been improper
because relevance was not shown); Escobar v. City of Houston, No. 04-1945, 2007 WL
2900581, at *17–18 (S.D. Tex. Sept. 29, 2007) (denying an adverse inference instruction for
destruction of emails in a police department following a shooting because the plaintiffs failed
to show bad faith and relevance). One opinion states that bad-faith destruction of evidence
“alone is sufficient to demonstrate relevance.” See Consol. Aluminum Corp. v. Alcoa, Inc.,
244 F.R.D. 335, 340 n.6 (M.D. La. 2006). But that opinion also went on to state that “before
an adverse inference may be drawn, there must be some showing that there is in fact a nexus
between the proposed inference and the information contained in the lost evidence” and that
“some extrinsic evidence of the content of the emails is necessary for the trier of fact to be
able to determine in what respect and to what extent the emails would have been
detrimental.” Id. at 346. In the present case, the party seeking sanctions for deleting emails
after a duty to preserve had arisen presented evidence of their contents. The evidence
included some recovered deleted emails and circumstantial evidence and deposition
testimony relating to the unrecovered records. There is neither a factual nor legal basis, nor
need, to rely on a presumption of relevance or prejudice.
E. Remedies: Adverse Inference Instructions
Courts agree that a willful or intentional destruction of evidence to prevent its use in
litigation can justify severe sanctions. Courts also agree that the severity of a sanction for
failing to preserve when a duty to do so has arisen must be proportionate to the culpability
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