In Cognex Corp. v. Microscan Systems, Inc., No. 13-cv-02027 (S.D.N.Y. Dec. 31, 2013), the district court considered a spoliation sanctions motion against the plaintiff related to the loss of a CD with software that defendants had requested in discovery.  The CD was damaged when the plaintiff shipped the only copy of the CD to its expert witness “without making any copy of the CD’s contents.”  As a result, when the CD was damaged in shipment, the requested software was lost.  The defendants sought an adverse instruction at trial, but the court refused.  The court held that the plaintiff’s failure to copy the CD after it was requested in discovery “is sufficient to infer a culpable state of mind.”  The court held, however, that defendants had not established how the CD “would be material to their claims or defenses.”  “This lack of materiality does not excuse plaintiff’s misconduct, but it is highly pertinent to determining what sanction is appropriate.”  In particular, “the absence of materiality suggests that the severe punishment of an adverse inference instruction would here be excessive.”  The court therefore ordered a lesser sanction of a $25,000 fine, payable to the court, and payment of defendants’ fees and costs in bringing their motion.