In Ross v. American Red Cross, the Sixth Circuit emphasizes the strong evidence required for spoliation sanctions.  During a routine office move, the defendant lost its file on the plaintiff’s injury, but the Court agreed with the district court that sanctions were inappropriate because there was no evidence of bad faith and the loss did not “unduly hinder” the plaintiff’s case.  Interestingly, the Court also held that an obligation to preserve that arose from a different case, but which concerned the same documents, as not applicable to the spoliation analysis in that case.  

The Court also affirmed the disqualification of the plaintiff’s expert witness because he had previously served as inside counsel for the defendant.  It rejected the argument that the defendant had to prove that the lawyer-turned-expert was actually using confidential information received from the defendant.  The Court emphasized that the correct test was whether the expert had been given confidential information relevant to the litigation, whether the information was useful or not.