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Wai Feng Trading Co. Ltd v. Quick Fitting, Inc.

United States District Court, D. Rhode Island

January 7, 2019

WAI FENG TRADING CO. LTD, and EASTERN FOUNDRY & FITTINGS, INC., Plaintiffs,
v.
QUICK FITTING, INC., Defendant. QUICK FITTING, INC. Plaintiff,
v.
WAI FENG TRADING CO., LTD., EASTERN FOUNDRY & FITTINGS, INC., EASTERN FOUNDRY AND FITTINGS, LLC, NINGO EFF MANUFACTORY CO, LTD., f/k/a/ NINGO W&F MANUFACTORY CO., LTD., WAI MAO COMPANY, LTD., CIXI CITY WAI FENG BALL VALVE COMPANY, LTD., W&F MANUFACTURING, and CHI YAM “ANDREW” YUNG, Defendants.

          MEMORANDUM AND ORDER

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         In these contentiously litigated consolidated cases, Quick Fitting, Inc., defendant in 13-33 and plaintiff in 13-56, accuses the Wai Feng parties[1] of having engaged in willful spoliation of significant relevant evidence. Now pending before the Court for determination is Quick Fitting's massive motion (ECF No. 220)[2] asking the Court to make a finding of spoliation as to twenty-four categories of electronically stored information (“ESI”) and other physical evidence. Based on the alleged spoliation, Quick Fitting moves for adverse inferences that encompass most of the elements of its claims that the Wai Feng parties misappropriated trade secrets, violated restrictive covenants and sold it push-fit products with excessive lead content; the motion also seeks other unspecified (“monetary”) sanctions, presumably attorney's fees. Some of the relief sought by the motion reprises arguments that the Court addressed in response to a motion Quick Fitting filed in 2015; at that time, the Court found “no evidence of any intentional withholding, refusal to search or spoliation of evidence by the Wai Feng defendant, ” as well as that, “this is a situation . . . [where] Quick Fitting is not happy with what it got as a result of the discovery because it doesn't support its theory of the case[.]” 13-56 ECF No. 189 at 7, 9.

         For the reasons that follow, the motion for findings of spoliation of evidence is denied, except for two Items, as to which it is denied without prejudice to Quick Fitting seeking a curative sanction depending on what is presented at trial. In so ruling, the Court clarifies that this determination is based on Quick Fitting's failure as of this juncture to establish as to any of the Items in issue (except for the two) the prerequisites required by law to justify a sanction either to cure prejudice or for intentional or bad faith destruction of evidence. In the event that the evidence presented at trial establishes or permits the inference that such prerequisites exist as to any specific lost item of evidence, the Court's denial of this motion is not an impediment to Quick Fitting (or the Wai Feng parties)[3] seeking an adverse inference instruction or a curative sanction (such as preclusion) at that time.

         I. BACKGROUND [4]

         A. Quick Fitting's Spoliation Motion

         In its motion, Quick Fitting marshals evidence that it contends is sufficient for the Court to find, as to twenty-four categories of Allegedly Spoliated Items (“ASI”), that the specific evidence existed but was not produced due to destruction, loss or concealment. Based on the loss of seventeen of the Items (ASI # 1-13, 17-20), the motion asks the Court to hold that Quick Fitting is entitled to the benefit of an adverse inference that the Wai Feng parties tried to sell and/or sold Quick Fitting's proprietary products to Watts Water, [5] Cixi Welday, [6] Bow Group[7] and through the Alibaba.com website.[8] Based on the loss of three of the Items (ASI # 14-16), Quick Fitting asks the Court for the adverse inference that CCWFBV manufactured Quick Fitting push-fit product in the early stage of the contractual relationship between the parties[9] and that CCWFBV later began to sell its own push-fit product line, at the same time that it still possessed Quick Fitting's confidential drawings and designs. Based on the recycling of two computers (ASI # 23-24), Quick Fitting asks the Court for the sweeping adverse inference that those devices contained data that would be harmful to the Wai Feng parties and helpful to Quick Fitting. Finally, for two Items (ASI # 21-22), Quick Fitting points to lead-content testing of Quick Fitting sample products purchased by the Wai Feng parties on the open market and, to the degree that the samples tested or the related purchase documents are not available, asks for the inference that the lost Items were actually manufactured by EFF Manufactory and had excessively high lead-content levels.

         Three of the Items are physical evidence - ASI # 1 is a sample plumbing product shown to Watts that the Wai Feng parties have admitted was push-fit manufactured based on Quick Fitting's proprietary designs; ASI # 13 includes “prototype[s]” that a Bow Group representative testified he saw at EFF Manufactory in 2013; and ASI # 21 encompasses samples of Quick Fitting products purchased by the Wai Feng parties on the open market. The remaining Items are ESI.

         Quick Fitting's motion essentially concedes that it has no direct evidence of bad faith or intentional conduct by the Wai Feng parties to deprive Quick Fitting of the information's use in the litigation. ECF No. 220-25 at 4. The motion nevertheless argues that the Court should adopt the adverse inferences requested based on an evidentiary foundation sufficient to show that: (1) the Wai Feng parties were sloppy in responding to discovery, producing it piecemeal and not providing many documents until late in the fact discovery period; (2) Andrew Yung provided sworn statements and testimony that turned out to be inconsistent with what emerged later in discovery; and (3) each Item allegedly existed after the litigation commenced but now is lost or missing. Quick Fitting contends that this is enough to permit the Court to find that each of the Items was destroyed “during the litigation with full knowledge of specific claims asserted by Quick Fitting for which the spoliated evidence would have been directly relevant[.]” Id. at 8.

         B. Wai Feng Parties' Duty to Preserve

         Beyond vague allusions to the pendency of “the litigation, ” id., Quick Fitting's motion is silent regarding the timing of the onset of the Wai Feng parties' duty to preserve as to each of the twenty-four Items of ASI. There is no suggestion that Quick Fitting ever sent a preservation notice to any of the Wai Feng parties. Nor is there any suggestion that Quick Fitting complied with the Fed.R.Civ.P. 26(f) requirement that the parties confer regarding the Wai Feng parties' duty to preserve the Items now in issue (or anything else). Fed.R.Civ.P. 26(f)(2-3). Moreover, in the circumstances of this case, “the litigation” is an inadequate construct on which to ground a duty to preserve most of the Items. The first salvo in these consolidated cases was fired by two of the Wai Feng parties, when they filed the predecessor case to 13-33 in Canada on August 2, 2012, following which it was refiled in the District of Rhode Island on January 17, 2013. However, that case is a simple collection action focused on Quick Fitting's failure to pay for goods that were ordered, delivered and accepted. The pendency of this “litigation” did not put any of the Wai Feng parties on notice of a potential claim of breach of the restrictive clauses in the three Agreements between the parties to which most of the Items pertain.

         The January 25, 2013, filing of the Verified Complaint initiating 13-56 is the first event potentially placing at least two of the Wai Feng parties on notice of a duty to preserve documents related to a claim of breach of the restrictive clauses. However, this pleading is primarily focused on Quick Fitting's claim that the product delivered was mislabeled, pitted, discolored, sloppily forged, or made with excessive lead. Its claims for “misappropriation of trade secrets” (Count I) and “violations of confidentiality, non-disclosure and non-competition” (Count II) vaguely assert only that the two Wai Feng parties then named had “appropriated [Quick Fitting's trade secrets] for their own use and benefit, ” 13-56 ECF No. 1 ¶ 56, and that their actions in “communicating with, attempting to do business with, and selling products to customers or prospective customers” violated various terms of the Agreements. Id. ¶ 61. A fair interpretation of these allegations is that they relate to Mueller Industries;[10] however, none of the ASI now in issue relates to Quick Fitting's Mueller-based claims.

         Notice of a claim addressed to all of the Wai Feng parties was given well over a year later, on April 17, 2014, when Quick Fitting's First Amended Verified Complaint was filed. 13-56 ECF No. 59. This pleading expanded the named defendants in 13-56 to include all of the Wai Feng parties, among other entities and persons. See R I at nn.3, 5. In this pleading, Quick Fitting charges that the Wai Feng parties “marketed and sold push-fit plumbing pieces utilizing Quick Fitting's technology protected by the written agreements.” 13-56 ECF No. 59 ¶ 117. The First Amended Verified Complaint also alleges that Quick Fitting was a purchaser of plumbing components and replacement parts from a Chinese company known as Cixi Welday, that Quick Fitting visited Cixi Welday in 2011 to assess its manufacturing and production capabilities, and that Cixi Welday began (in approximately 2014) “advertising, selling, and distributing a line of push-fit plumbing products[, ]” which the Wai Feng parties were manufacturing for Cixi Welday using Quick Fitting's proprietary designs and trade secrets. Id. ¶¶ 151, 154, 157, 161-62. Alternatively, it claims that the Wai Feng parties sold or transferred Quick Fitting push-fit products to Cixi Welday for further sale and distribution. Id. ¶ 161. Similarly, the First Amended Verified Complaint alleges that CCWFBV is “offering for sale and selling push-fit products that were acquired from [the Wai Feng parties] who were prohibited from selling them.” Id. ¶ 174. This complaint also alleges that the Wai Feng parties “sold or are attempting to sell Quick Fitting's push-fit plumbing technology to other entities, ” and that they gave price quotes to a “major customer” of Quick Fitting for its push-fit product line. Id. ¶¶ 177-78. Count I of the First Amended Verified Complaint claims that the Wai Feng parties breached the restrictive clauses by attempting to do business with and sell products to Quick Fitting's customers, by selling Quick Fitting push-fit plumbing products and by selling push-fit plumbing of any type. Id. ¶¶ 175-83.

         Quick Fitting's remaining pleadings - its September 19, 2014, counterclaim (ECF No. 68); its December 9, 2014, amended counterclaim (ECF No. 81); and its October 1, 2015, Second Amended Verified Complaint (13-56 ECF No. 135) - do not add anything new regarding its claims of breach of the restrictive covenants.

         C. Quick Fitting's Prior Motion for Sanctions Based on Failure to Preserve and Produce Relevant Discovery

         On November 25, 2015, Quick Fitting filed a motion asking the Court to sanction the Wai Feng parties for discovery misconduct by requiring them to pay for a forensic ESI vendor of Quick Fitting's choice to image all of the content of all of the Wai Feng parties' computer hard drives, devices, servers and cloud-based ESI repositories, which material was to be turned over to Quick Fitting without regard to relevancy or privilege. ECF No. 119. Among other reasons for this sanction, the 2015 motion focused on the following: Andrew's Yung's 2013 recycling of his computer;[11] references in emails between the Wai Feng parties and Watts suggesting the possibility of other, unproduced, electronic material;[12] screen shots of the Alibaba.com website that Quick Fitting argued suggested that the Wai Feng parties posted push-fit products yet had not admitted to having done so;[13] the possibility that the Wai Feng parties might have drawings or other documents related to Cixi Welday's manufacturing of components for the Quick Fitting products;[14] documents related to business transactions in 2010 with CCWFBV;[15] and documents and items reflecting lead-content testing done by the Wai Feng parties of Quick Fitting products purchased on the open market.[16] As summarized in the footnotes below, the 2015 motion's allegations of discovery misconduct relate to many of the Items now in issue.

         Because of Quick Fitting's failure to meet and confer before filing the 2015 motion, the Court was required to hold three hearings and three phone conferences with the parties to fully address the issues raised.[17] At the final hearing, the Court found as follows: there was “no evidence of any intentional withholding, refusal to search or spoliation of evidence by the Wai Feng defendant, ” 13-56 ECF No. 189 at 7; that the remedy sought by Quick Fitting was contrary to Fed.R.Civ.P. 26(b)(1)'s focus on proportionality; and that at least some of the dispute was the result of Quick Fitting's failure to comply with the Fed.R.Civ.P. 26(f)(2-3) requirement to discuss ESI, including the preservation of discoverable evidence, at the outset of the litigation, as well as its failure to specify format in its document requests under Fed.R.Civ.P. 34(b)(1)(C). 13-56 ECF No. 189 at 8-9. The facts developed in connection with this motion also established clearly that neither the Wai Feng parties nor Quick Fitting is sophisticated with respect to ESI and litigation. In the end, based on these findings and the determination “that Quick Fittings [sic] is not happy with what it got as a result of the discovery because it doesn't support its theory of the case and that it now is seeking what appears to be the production of irrelevant materials at a cost that is disproportionate to the case in the hope that something might be found[, ]” the Court denied the motion for sanctions. Id. at 9. Nevertheless, interpreting the motion not only as a motion for sanctions, but also as a motion to compel, the Court granted it in part by entering a limited order directing the Wai Feng parties to complete certain searches of a specified database. Text Order of Mar. 16, 2016.

         II. APPLICABLE LAW

         “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Ann Rivera v. Sam's Club Humacao, Civil No. 16-2307 (ADC), 2018 WL 4705915, at *7 (D.P.R. Sept. 28, 2018). To support an inference of spoliation, “the party urging that spoliation has occurred must show that there is evidence that has been spoiled (i.e., destroyed or not preserved)[, ]” as well as that “the opposing party had notice of a potential claim and of the relevance to that claim of the destroyed evidence.” Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 399 (1st Cir. 2012); McDonald v. City of Boston, 334 F.Supp.3d 429, 436 (D. Mass. 2018) (movant must demonstrate that evidence was destroyed or not preserved), appeal filed, No. 18-1948 (Oct. 5, 2018). Federal law controls the issue of spoliation in cases pending in federal court. Hofer v. Gap, Inc., 516 F.Supp.2d 161, 170 n.10 (D. Mass. 2007).

         For lost physical evidence, sanctions for spoliation may be imposed based on the Court's inherent power. Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991); see Hefter Impact Techs., LLC v. Sport Maska, Inc., Civil Action No. 15-13290-FDS, 2017 WL 3317413, at *8 (D. Mass. Aug. 3, 2017) (contrasting standards for spoliation of ESI and physical evidence); Jimenez-Sanchez v. Caribbean Rests., LLC, 483 F.Supp.2d 140, 143 (D.P.R. 2007) (“Through the court's inherent power to manage its own affairs, it may sanction a party for spoliation.”).

         For lost ESI, which is most of what is in issue here, the starting point for the Court's analysis must be Fed.R.Civ.P. 37(e) as amended in 2015, which addresses the failure to preserve ESI. Moody v. CSX Transp., Inc., 271 F.Supp.3d 410, 425-26 (W.D.N.Y. 2017) (although destroyed laptop is tangible, it is ESI stored in it that is relevant evidence; Fed.R.Civ.P. 37(e) must be applied); Hefter Impact Techs., 2017 WL 3317413, at *6 (sanctions for loss of ESI is governed by Fed.R.Civ.P. 37(e)). The Order adopting this amendment provides that it became effective on December 1, 2015, and “shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” 2015 U.S. Order 0017. Based on the Order, courts hold that the amended rule governs pending proceedings “unless its application would be unjust or impracticable.” CAT3, LLC v. Black Lineage, Inc., 164 F.Supp.3d 488, 495-96 (S.D.N.Y. 2016) (emphasis in original); see Grodzitsky v. Am. Honda Motor Co., No. CV121142SVWPLAX, 2017 WL 2616917, at *3 (C.D. Cal. June 13, 2017). Further, “because the amendment is in some respects more lenient as to the sanctions that can be imposed for violation of the preservation obligation, there is no inequity in applying it” to pending cases. CAT3, LLC, 164 F.Supp.3d at 495-96.

         Quick Fitting's motion made no reference to Fed.R.Civ.P. 37(e), while the Wai Feng parties contended that the amended Rule lays out the correct decisional framework for the Items that constitute ESI. On Reply, Quick Fitting did not point to anything that would be unjust or impracticable about applying the amended Rule, but rather argued that this case was filed before December 1, 2015, so the Court should disregard Fed.R.Civ.P. 37(e), as amended. I disagree - the pending spoliation motion was filed two and a half years after the effective date of the amended Rule. In such circumstance, courts considering the question consistently hold that Fed.R.Civ.P. 37(e) should be applied even though the case was commenced prior. See Moody, 271 F.Supp.3d at 425 (both just and practicable to apply amended Rule 37(e) to 2007 case because motion filed after effective date of amendment; generally, motions filed after effective date are to be decided under amended Rule); Hefter Impact Techs., 2017 WL 3317413, at *6 (“it appears both just and practicable to apply the amended Rule 37 to” case filed before effective date of amendment, where motion was filed after); Grodzitsky, 2017 WL 2616917, at *3 (“[T]he Supreme Court's Order creates a presumption that the amended Rules apply to [c]ases ongoing so long as the application of the amended Rules would not be unjust or impracticable.”).

         On Reply, Quick Fitting also attempted to rebut the Wai Feng parties' argument that the Court should rely on Fed.R.Civ.P. 37(e) by arguing that “only a portion of the spoliation motion concerns ESI, and Quick Fitting believes that all materials produced by the Yungs during the litigation were hard-copy documents[.]” ECF No. 227 at 23. This argument is doomed by the force of Quick Fitting's opening brief, as well as its 2015 motion focused on the same material - while it is conceivable that part of the discovery problem Quick Fitting once faced was caused by the parties' limitation of searching to hard copies[18] (resulting in the piecemeal production of which Quick Fitting has been so critical), Quick Fitting has been consistently clear that it is the Wai Feng parties' failure to search for, or loss of, ESI that is the crux of Quick Fitting's discovery complaints.

         At bottom, Quick Fitting has failed to point to any reason why the application of Fed.R.Civ.P. 37(e) to the pending motion would be unjust or impracticable. To the contrary, the Court finds that it is both just and practicable to rely on the amended version of the Rule with respect to Quick Fitting's motion based on alleged spoliation of lost ESI.

         A. Loss of ESI

         To trigger the application of Fed.R.Civ.P. 37(e)[19] to a claim of lost ESI, the movant must establish, first, that ESI has been lost and is not available in any other location. Hefter Impact Techs., 2017 WL 3317413, at *7 (movant failed to show that relevant emails in fact were destroyed; sloppiness in discovery is not proof of lost ESI); see Fed.R.Civ.P. 37(e) advisory committee's note to 2015 amendment. Second, the court must consider whether and when a duty to preserve the lost ESI arose; this requires consideration of when the party in possession of the ESI was on notice not only of the litigation but also that the ESI would be relevant to the litigation. Id.; see Jenkins v. Woody, Civil Action No. 3:15cv355, 2017 WL 362475, at *12 (E.D. Va. Jan. 21, 2017) (duty to preserve arises when a party reasonably should know that the evidence may be relevant to anticipated litigation); Gonzalez-Bermudez v. Abbott Labs. PR Inc., 214 F.Supp.3d 130, 160-63 (D.P.R. 2016) (court must determine if allegedly spoliated ESI should have been preserved and, if so, when did such duty emerge). Further, Fed.R.Civ.P. 37(e) applies only if the party in possession of the lost ESI failed to take “reasonable steps” to preserve the information and the information could not have been restored or replaced through additional discovery. Fed.R.Civ.P. 37(e) advisory committee's note to 2015 amendment. In applying the requirement of “reasonable steps, ” courts must be mindful that “perfection in preserving all relevant electronically stored information is often impossible, ” as well as that this factor requires consideration of the litigation sophistication of the party in possession of the ESI and the proportionality to the litigation of costly and aggressive preservation efforts. Id.; see Jenkins, 2017 WL 362475, at *16 (court orders sanction to cure prejudice caused by loss of video of prisoner's dying moments in part based on finding that preservation was called for by well-established protocol and easily accomplished).

         If the movant establishes that a party failed to take reasonable steps to preserve ESI after a duty to preserve it arose and that the information cannot be restored or replaced through additional discovery, the court's next inquiry is whether the loss of the ESI has caused prejudice or whether the party in possession acted “with the intent to deprive another party of the information's use in the litigation.” Fed R. Civ. P. 37(e)(1-2).

         Subsection (e)(1) of the Rule is applicable “upon a finding of prejudice[.]” Fed.R.Civ.P. 37(e)(1). The Rule is silent regarding how the court makes the determination of prejudice, including which party carries the burden. Int'l Bus. Machs. Corp. v. Naganayagam, No. 15 Civ. 7991 (NSR), 2017 WL 5633165, at *6-7 (S.D.N.Y. Nov. 21, 2017) (prejudice not found despite loss of emails where movant failed to depose witness who could have testified regarding their content or how other lost ESI was material to claim). The Advisory Committee Notes acknowledge that “placing the burden of proving prejudice on the party that did not lose the information may be unfair, ” but, “[i]n other situations, however, the content of the lost information may be fairly evident, the information may appear to be unimportant, or the abundance of preserved information may appear sufficient to meet the needs of all parties.” Fed.R.Civ.P. 37(e) advisory committee's note to 2015 amendment. Nevertheless, proof that the lost ESI is important or material to a significant issue should fall on the movant. Id. It is also clear that “[a] dispute as to whether or not a potentially relevant document ever existed does not establish prejudice, ” particularly in a circumstance where most of the underlying claims have survived summary judgment. Knight v. Boehringer Ingelheim Pharm., Inc., 323 F.Supp.3d 837, 860 (S.D. W.Va. 2018); see Hefter Impact Techs., 2017 WL 3317413, at *7 (no prejudice where evidence shows that laptop was wiped during period when there was no duty to preserve information it was likely to contain and any relevant material was “on the margin”).

         If prejudice is found, the court is authorized to employ measures “no greater than necessary to cure the prejudice[.]” Fed.R.Civ.P. 37(e)(1); TLS Mgmt. & Mktg. Servs. LLC v. Rodriguez-Toledo, Civil No. 15-2121 (BJM), 2017 WL 1155743, at *1 (D.P.R. Mar. 27, 2017). These include prohibiting the party that failed to preserve from putting on certain evidence, permitting the parties to present evidence or argument to the jury regarding the loss of the ESI or giving the jury instructions to assist in its evaluation of such evidence or argument. Fed.R.Civ.P. 37(e) advisory committee's note to 2015 amendment. For example, in Jenkins, the court found that the loss of the video depicting the decedent's dying moments in a holding cell inflicted “grave prejudice[, ]” but did not find “sufficient proof of intent directed toward depriving” the plaintiff of use of the video data. 2017 WL 362475, at *17-19. Accordingly, the court declined to give an adverse inference instruction but opted to allow the parties to present arguments to the jury regarding the loss of the critical video, as well as to preclude the defendants from arguing that the video would have corroborated their version of the event. Id. The Rule is clear - without a finding of intentional spoliation, an adverse inference that the ESI was unfavorable to the party that lost it is not appropriate. Fed.R.Civ.P. 37(e) advisory committee's note to 2015 amendment.

         Subsection (e)(2) applies “upon finding that the party acted with the intent to deprive another party of the information's use in the litigation.” Fed.R.Civ.P. 37(e)(2). If such intent is shown, there is no need separately to establish prejudice. Fed.R.Civ.P. 37(e) advisory committee's note to 2015 amendment. The purpose of Fed.R.Civ.P. 37(e)(2) is to provide for specified and very severe measures to address or deter failure to preserve ESI. In particular, the Rule limits the court's ability to draw adverse inferences from lost ESI to circumstances where the court finds that the information was lost with the intent to prevent its use in the case. Naganayagam, 2017 WL 5633165, at *5 (“a Court may not issue an adverse inference instruction unless the Court finds” the requisite intent) (citing Best Payphones, Inc. v. City of New York, No. 1-CV-3924 (JG)(VMS), 2016 WL 792396, at *4 (E.D.N.Y. Feb. 26, 2016)).

         The intent requirement in Fed.R.Civ.P. 37(e)(2) is “stringent” - it must be based on more than just negligence or even gross negligence in producing or preserving ESI. See Knight, 323 F.Supp.3d at 845; Fed.R.Civ.P. 37(e) advisory committee's note to 2015 amendment. Thus, a court cannot conclude that the mere failure to retain ESI establishes that a party is guilty of acting with intent to deprive the other party of relevant information. Knight, 323 F.Supp.3d at 860. Nevertheless, intent may be inferred. For example, courts have inferred intent based on evidence that ESI once existed and would have been material to a fact issue pivotal to the outcome of the case; that the spoliator, aware of its content and materiality, engaged in an affirmative act to cause it to be lost; that the spoliating party knew of its duty to preserve at the time of the act; and that the affirmative act causing the loss cannot be credibly explained as it amounts to deviation from established protocols. Moody, 271 F.Supp.3d at 431-32 (intent found based on proof that, after being reviewed immediately following tragedy, critical recorder data from train that ran over plaintiff was lost because defendant failed to follow procedures to preserve and then destroyed laptop on which only copy was saved) (citing Ala. Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 730, 746 (N.D. Ala. 2017)). Similarly, if a clear preservation letter is sent that specifies the computer to be safeguarded and identifies the ESI in it to be preserved, after which the recipient of the letter destroys the computer with no attempt to preserve the ESI, a finding of intent is warranted. TLS Mgmt., 2017 WL 1155743, at *2.

         In some circuits, the burden on the movant is to show intent by clear and convincing evidence. See Knight, 323 F.Supp.3d at 860 (Fourth Circuit applies clear and convincing evidence standard where a relatively harsh sanction like an adverse inference is sought). As of this writing, the First Circuit has yet to address the issue. But cf. Anderson v. Cryovac, Inc., 862 F.2d 910, 923-26 (1st Cir. 1988), aff'd, 900 F.2d 388 (1st Cir. 1990) (to prevail on motion for new trial based on discovery misconduct, movant must meet clear and convincing evidence standard). The finding of intent may be made by the jury. Fed.R.Civ.P. 37(e) advisory committee's note to 2015 amendment. Since the content of a jury instruction is normally formulated after the conclusion of evidence, or at least during trial, ...


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