In the context of an employment discrimination dispute, the Second Circuit Court of Appeals has determined that a district court did not abuse its discretion in denying an adverse inference instruction despite the defendant’s failure to preserve personnel files after receiving notice of the plaintiffs’ Equal Employment Opportunity charge in 2001. Chin v. The Port Auth. of NY & NJ, Nos. 10-1904-cv(L), 10-2031-cv(XAP) (2d Cir., decided July 10, 2012).
Thus, the court rejected the plaintiffs’ contention that “a failure to institute a ‘litigation hold’ constitutes gross negligence per se.” Instead, the court indicated that “‘the better approach is to consider [the failure to adopt good preservation practices] as one factor’ in the determination of whether discovery sanctions should issue.” This determination, according to the court, must be made on a case-by-case basis.