In EEOC v. JP Morgan Chase Bank, N.A., No. 09-0864 (S.D. Ohio Feb. 28, 2013), the district court granted a motion for sanctions against the defendant for allowing relevant electronic evidence to be deleted after the initiation of the litigation. The court held that the “[d]efendant’s failure to establish a litigation hold” after repeated notice form the plaintiff “is inexcusable” and “remove[s] the conduct here from the protections provided by Rule 37(e)” for an inadvertent loss of data. The court held that the proper sanction was a “permissive adverse instruction” to the jury regarding the deleted data, but, to effectuate that sanction, the court found it necessary to deny the defendant’s pending summary judgment motion, which “theoretically could prevent Plaintiff from ever reaching a jury.”
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Adverse instruction ordered as sanction for spoliation
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